State v. Earls

NO. COA13-1128

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Catawba County
Nos. 11CRS004534-36
MAX TRACY EARLS, 11CRS053827-30
Defendant.

Appeal by defendant from Judgments entered on or about 18

April 2013 by Judge Richard D. Boner in Superior Court, Catawba

County. Heard in the Court of Appeals 6 March 2014.

Attorney General Roy A. Cooper III, by Special Deputy
Attorney General Amar Majmundar, for the State.

M. Alexander Charns, for defendant-appellant.

STROUD, Judge.

Max Earls (“defendant”) appeals from judgments entered

after a Catawba County jury found him guilty of three counts of

taking indecent liberties with a child, two counts of incest,

one count of statutory rape, and one count of rape of a child by

an adult. We conclude that there was no error at defendant’s

trial or sentencing.

I. Background
 -2-
On or about 11 July 2011, defendant was indicted on three

counts of taking indecent liberties with a child, two counts of

incest, one count of statutory rape, and one count of rape of a

child by an adult. Defendant pled not guilty and was tried by

jurythe week of 15 April 2013.

At trial, the State’s evidence tended to show that in mid-

to-late 2010, defendant was living with his wife and three

daughters, Kate, Ellen, and Carol,1 in Catawba County, NC. At the

time, Kate was 13, Ellen was 11, and Carol was approximately 2.

Kate and Ellen both testified at trial. Kate testified that

defendant had sexually abused her by forcing her to engage in

both vaginal and anal intercourse. Ellen testified that

defendant made her take her clothes off and got into bed naked

with her. She could not say aloud what he did to her after that,

but while she was on the witness stand the prosecutor had her

write down what happened. Ellen wrote that defendant had put his

penis in her vagina. After the State rested, defendant presented

his own evidence and testified on his own behalf. He denied that

he ever touched his daughters inappropriately and claimed that

they made up the story.

1
To protect the identities of the juveniles and for ease of
reading we will refer to them by pseudonym.
 -3-
The jury found defendant guilty of all charges. The trial

court then consolidated the charges into two judgments and

sentenced defendant to 300 to 369 months imprisonment with a

consecutive sentence of 240 to 297 months imprisonment.

Defendant filed timely written notice of appeal on 22 April

2013.

II. Guilt Phase

Defendant argues that the trial court erred in four ways

during the guilt phase of his trial: (1) that the trial court

erred in allowing the prosecution to ask the 14-year-old Ellen

leading questions, which violated his rights under the Sixth and

Fourteenth Amendments; (2) that the trial court erred by

allowing the prosecutor to read Ellen’s written statement to the

jury; (3) that the prosecutor improperly vouched for Ellen’s

credibility by reading her statement to the jury; and (4) that

Ellen was not competent to testify. We conclude that all of

defendant’s arguments are meritless and that several of them

have not been properly preserved.

A. Leading Questions

Defendant did object to one of the prosecutor’s leading

questions of Ellen on the basis of leading. We review the trial

court’s decision to overrule this objection for an abuse of
 -4-
discretion. See State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d

55, 59 (1986) (“Rulings by the trial judge on the use of leading

questions are discretionary and reversible only for an abuse of

discretion.”).

The prosecutor and Ellen had the following exchange leading

to defendant’s objection:

[Prosecutor]: I’m going to show you what’s
marked as State’s Exhibit 6. I’m going to
ask you, when I was questioning you earlier
and I asked you to write down what your
father did to you, is this your writing?

[Ellen]: Yes.

[Prosecutor]: Okay. And you wrote that?

[Ellen]: Yes.

[Prosecutor]: And you wrote that while you
were sitting on the witness stand?

[Ellen]: Yes.

[Prosecutor]: And this happened to you, is
that true?

[Ellen]: Yes.

[Prosecutor]: And your father did this to
you, is that true?

[Defense Counsel]: Objection to the leading.

THE COURT: The objection is overruled.

[Prosecutor]: Is that true?

[Ellen]: Yes.
 -5-

This question was the only one to which defendant objected.

Any other objection to the prosecutor’s questions has not been

preserved. N.C.R. App. P. 10(a)(1). The control of witness

examination is discretionary, Riddick, 315 N.C. at 756, 340

S.E.2d at 59, and not reviewable for plain error, see State v.

Norton, 213 N.C. App. 75, 81, 712 S.E.2d 387, 391 (2011) (noting

that “discretionary decisions of the trial court are not subject

to plain error review.”).

The general rule is that leading questions
should be asked only on cross-examination.
However, a trial judge must exercise
reasonable control over the mode of
interrogating witnesses. Leading questions
should be permitted on direct examination
when necessary to develop the witness’s
testimony.

Riddick, 315 N.C. at 755, 340 S.E.2d at 59 (citations, quotation

marks, and ellipses omitted).

Here, Ellen testified in response to a non-leading question

that something bad happened between her and defendant. She

testified that she was watching TV in her sister’s basement

bedroom when defendant came in and sat down on the bed next to

her. She stated that he told her to undress and took his clothes

off. The prosecutor asked what happened next, but Ellen did not

respond. She had already been crying at several points
 -6-
throughout her testimony and it is clear from the transcript

that she refused to look at anyone in the eye or answer

questions about what happened after her father got into the bed

with her naked.

In response, the prosecutor began asking her more leading

questions, encouraging her to tell the truth and to say what

happened. She responded to various questions about the people

with whom she had discussed what had happened, but would not say

what defendant did to her. Out of the presence of the jury, the

prosecutor attempted to refresh Ellen’s recollection by having

her read a prior written statement she had made, but Ellen

refused to look at it. The trial court instructed Ellen to

answer both the prosecutor’s and the defense attorney’s

questions. The court also warned the prosecutor that if Ellen

refused to answer questions on cross-examination, he would have

to strike her testimony. When the jury returned, she continued

not to respond to questions about what defendant did to her.

While Ellen was still on the witness stand, the prosecutor had

Ellen write down what defendant did to her. They then had the

exchange discussed above.

The trial judge in ruling on leading
questions is aided by certain guidelines
which have evolved over the years to the
effect that counsel should be allowed to
 -7-
lead his witness on direct examination when
the witness is: (1) hostile or unwilling to
testify, (2) has difficulty in understanding
the question because of immaturity, age,
infirmity or ignorance or where (3) the
inquiry is into a subject of delicate nature
such as sexual matters, (4) the witness is
called to contradict the testimony of prior
witnesses, (5) the examiner seeks to aid the
witness’ recollection or refresh his memory
when the witness has exhausted his memory
without stating the particular matters
required, (6) the questions are asked for
securing preliminary or introductory
testimony, (7) the examiner directs
attention to the subject matter at hand
without suggesting answers and (8) the mode
of questioning is best calculated to elicit
the truth.

State v. Greene, 285 N.C. 482, 492-93, 206 S.E.2d 229, 236

(1974).

Here, the prosecutor was attempting to ask a 14-year-old

witness explicit questions about her father’s sexual conduct

toward her. She was clearly very reluctant to testify about it

in detail and out loud. The prosecutor repeatedly urged Ellen to

tell the truth, regardless of what her answer would be. The

prosecutor attempted to refresh her recollection with her prior

statements, but she still refused to specify what defendant did

to her. Leading questions were clearly necessary here to develop

the witness’s testimony. Given the facts of this case, we cannot

say that the trial court abused its discretion in permitting the
 -8-
prosecutor to ask Ellen leading questions. See Riddick, 315 N.C.

at 756, 340 S.E.2d at 59.

Defendant also makes a brief argument that the prosecutor

violated his right to confront his accuser under the Sixth and

Fourteenth Amendments by asking Ellen leading questions. He

cites no case holding that a trial court’s decision to allow

leading questions on direct examination implicates a criminal

defendant’s confrontation rights. Ellen testified in open court

and defendant had a full and fair opportunity to cross-examine

her, which he did. This argument is meritless.

B. Reading to the Jury

Defendant next argues that it was error for the trial court

to permit the prosecutor to read Ellen’s in-court, written

statement to the jury. The challenged statement was a one-line

written statement about that which Ellen could not bring herself

to say aloud: that defendant placed his penis in her vagina. It

was made in court, before the jury, and defendant had an

opportunity to cross-examine her about the statement, an

opportunity he took advantage of. Other than a single reference—

without a cite—to that which “Confrontation requires,” he makes

no argument that any rule of evidence, statute, or

constitutional provision was violated by this manner of
 -9-
presentation. Therefore, we have no legal basis upon which to

review this alleged error. See N.C.R. App. P. 28(b)(6). It is

not the role of this Court to craft defendant’s arguments for

him. Viar v. North Carolina Dept. of Transp., 359 N.C. 400, 402,

610 S.E.2d 360, 361 (2005) (stating that “[i]t is not the role

of the appellate courts, . . . to create an appeal for an

appellant”).

C. Vouching for Credibility of the Witness

Defendant further argues that the prosecutor vouched for

Ellen’s credibility by reading her in-court, written statement

to the jury. The prosecutor never made any statement directly

about Ellen’s credibility. Defendant simply contends that the

act of reading the statement itself was equivalent to vouching

for her credibility. He did not object on this basis below and

does not specifically argue on appeal that this alleged error

would constitute plain error. Therefore, it has not been

preserved for our review. See State v. Lawrence, 365 N.C. 506,

516, 723 S.E.2d 326, 333 (2012) (“To have an alleged error

reviewed under the plain error standard, the defendant must

‘specifically and distinctly’ contend that the alleged error

constitutes plain error.”).

D. Ellen’s Competency
 -10-
Defendant does argue that the admission of Ellen’s

testimony constituted plain error because she was incompetent to

testify. As defendant notes, “the competency of a witness is a

matter which rests in the sound discretion of the trial judge in

the light of his examination and observation of the particular

witness.” State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426

(1987) (citation, quotation marks, and emphasis omitted).

Defendant never raised the issue of Ellen’s competency below and

“discretionary decisions of the trial court are not subject to

plain error review.” Norton, 213 N.C. App. at 81, 712 S.E.2d at

391. Therefore, this alleged error has not been preserved for

our review.

III. Ineffective Assistance of Counsel

Defendant next argues that his trial counsel rendered

ineffective assistance of counsel by not objecting to the

introduction of a videotaped interview of Ellen.

To successfully assert an ineffective
assistance of counsel claim, defendant must
satisfy a two-prong test. First, he must
show that counsel’s performance fell below
an objective standard of reasonableness.
Second, once defendant satisfies the first
prong, he must show that the error committed
was so serious that a reasonable probability
exists that the trial result would have been
different absent the error.
 -11-
State v. Ballance, ___ N.C. App. ___, ___, 720 S.E.2d 856, 867

(2012) (citation and quotation marks omitted). Defendant cannot

show that his trial counsel’s performance fell below an

objective standard of reasonableness or that the failure to

object prejudiced him if the evidence to which he failed to

object was admissible.

Here, the out-of-court videotaped statement was introduced

to corroborate Ellen’s testimony as a prior consistent statement

and the trial court gave a limiting instruction to that effect.

“A prior consistent statement may be admissible as non-hearsay

even when it contains new or additional information when such

information tends to strengthen or add credibility to the

testimony which it corroborates. Out-of-court statements offered

to corroborate a child’s testimony regarding sexual abuse have

been held to be non-hearsay.” State v. Treadway, 208 N.C. App.

286, 290, 702 S.E.2d 335, 341 (2010) (citations and quotation

marks omitted), disc. rev. denied, 365 N.C. 195, 710 S.E.2d 35

(2011). There is no colorable argument that this evidence was

inadmissible and defendant makes none. Therefore, we hold that

defendant has failed to show that he received ineffective

assistance of counsel.

IV. Sentencing Phase
 -12-
Defendant next argues that the trial court violated his

right to due process by quoting the Bible during sentencing.

A sentence within the statutory limit will
be presumed regular and valid. However, such
a presumption is not conclusive. If the
record discloses that the court considered
irrelevant and improper matter in
determining the severity of the sentence,
the presumption of regularity is overcome,
and the sentence is in violation of
defendant’s rights.

State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977).

“When the validity of a judgment is challenged, the burden is on

the defendant to show error amounting to a denial of some

substantial right.” State v. Bright, 301 N.C. 243, 261, 271

S.E.2d 368, 379-80 (1980).

The trial court heard arguments from both attorneys, but

neither aggravating nor mitigating evidence was offered. The

State asked for all sentences to run consecutively, while

defendant asked for a single sentence. Defendant’s only argument

at the sentencing hearing was that it was a close case and that

“he has been a caring father and husband and supportive.”

Before pronouncing its sentence, the trial court addressed

defendant:

Well, let me say this: I think children are
a gift of God and I think God expects when
he gives us these gifts that we will treat
them as more precious than gold, that we
 -13-
will keep them safe from harm the best as
we’re able and nurture them and the child
holds a special place in this world. In the
19th chapter of Matthew Jesus tells his
disciples, suffer the little children, to
come unto me, forbid them not: for such is
the kingdom of heaven. And the law in North
Carolina, and as it is in most states,
treats sexual abuse of children as one of
the most serious crimes a person can commit,
and rightfully so, because the damage that’s
inflicted in these cases is incalculable.
It’s murder of the human spirit in a lot of
ways. I’m going to enter a judgment in just
a moment. But some day you’re going to stand
before another judge far greater than me and
you’re going to have to answer to him why
you violated his law and I hope you’re ready
when that day comes.

Defendant correctly observes that taking into account the

religious beliefs of either the trial judge or the defendant is

an improper sentencing consideration. “Courts . . . cannot

sanction sentencing procedures that create the perception of the

bench as a pulpit from which judges announce their personal

sense of religiosity and simultaneously punish defendants for

offending it.” United States v. Bakker, 925 F.2d 728, 740 (4th

Cir. 1991). However, a trial court’s religious references during

sentencing only violate due process “where impermissible

personal views expressed at sentencing were the basis of the

sentence.” United States v. Traxler, 477 F.3d 1243, 1249 (10th

Cir. 2007), cert. denied, 552 U.S. 909, 169 L.Ed. 2d 186 (2007).
 -14-
As the Fourth Circuit observed in Bakker, “[t]o a

considerable extent a sentencing judge is the embodiment of

public condemnation and social outrage. As the community’s

spokesperson, a judge can lecture a defendant as a lesson to

that defendant and as a deterrent to others.” Bakker, 925 F.2d

at 740 (citation, quotation marks, and footnote omitted). In

that case, the Fourth Circuit remanded for a new sentencing

hearing because it was concerned “that the imposition of a

lengthy prison term here may have reflected the fact that the

court’s own sense of religious propriety had somehow been

betrayed.” Id. at 741.

In Arnett v. Jackson, 393 F.3d 681 (6th Cir. 2005), cert.

denied, 546 U.S. 886, 163 L.Ed. 2d 193 (2005), the Sixth Circuit

addressed a similar set of circumstances to those here. In

Arnett, an Ohio state trial court sentenced the defendant to a

fifty-one year prison term for pandering obscenity and ten

counts of rape of a child. 393 F.3d at 684. The victim in that

case was the daughter of defendant’s live-in girlfriend. Id. at

683. At the sentencing hearing, the trial court castigated

defendant for his crimes, emphasizing the long-term trauma he

inflicted on the victim. Id. at 683-84. The sentencing court

also stated,
 -15-
that passage where I had the opportunity to
look is Matthew 18:5, 6. “And whoso shall
receive one such little child in my name,
receiveth me. But, whoso shall offend one of
these little ones which believe in me, it
were better for him that a millstone were
hanged about his neck, and he were drowned
in the depth of the sea.”

Id. at 684. After quoting this passage from Matthew, the court

pronounced its sentence. Id. Defendant appealed his sentence

to the Ohio appellate courts. Id. The Ohio Court of Appeals

vacated his sentence because of the trial court’s comments. Id.

The State appealed and the Ohio Supreme Court reversed the Court

of Appeals, upholding his sentence. Id. After exhausting his

direct appeals, the defendant filed a petition for writ of

habeas corpus with the federal district court. Id. The federal

district court found that the state courts had violated

defendant’s due process rights and ordered that he be released

or resentenced. Id. at 685.

On appeal, the Sixth Circuit reversed the district court.

Id. at 688. The appellate court concluded that

There is nothing in the totality of the
circumstances of Arnett’s sentencing to
indicate that the trial judge used the Bible
as her “final source of authority,” as found
by the district court. Moreover, the
Biblical principle of not harming children
is fully consistent with Ohio’s sentencing
consideration to the same effect. If the
trial judge had actually sentenced Arnett
 -16-
based upon a belief that God commanded that
he be “drowned in the depth of the sea,” we
would expect the sentence imposed to be the
maximum length possible. In reality, he was
sentenced in the lower half of the
sentencing range allowable under Ohio law.

Id. It accordingly held that the defendant’s “due process rights

were not violated by the judge’s Biblical reference at

sentencing.” Id.

While the trial court here should not have referenced the

Bible or divine judgment in sentencing, defendant cannot show

that his rights were prejudiced in any way or that his sentence

was based on the trial court’s religious invocation. The trial

court consolidated the convictions into two judgments: it

consolidated the one conviction for rape of a child into the

first judgment along with one count of indecent liberties and

one count of incest; the remainder of the convictions were

consolidated in the second judgment. The trial court sentenced

defendant to 300 to 369 months imprisonment with a consecutive

sentence of 240 to 297 months imprisonment. The most serious

offense in the first judgment was rape of a child, which carries

a 300 month mandatory minimum sentence, N.C. Gen. Stat. § 14-

27.2A(b) (2009). The most serious offenses in the second

judgment were Class B1 offenses. Defendant had a prior record

level of 1. The presumptive range for a prior record level 1
 -17-
offender convicted of a Class B1 felony was 192-240 months.

Thus, the trial court sentenced defendant at the mandatory

minimum for the first judgment and within the presumptive range

for the second. See N.C. Gen. Stat. § 15A-1340.17 (2009).

The crimes of rape of a child and incest severely harm

young children, often for the remainder of their lives. “[O]ur

society has a long history of sternly punishing those people who

hurt young children.” Arnett, 393 F.3d at 687. The severe

punishments imposed by our General Statutes for such crimes

recognize this harm. The trial court’s remarks similarly touched

on this theme and were clearly aimed at lecturing defendant

about the impact of his crimes on his daughters and on the

community. In doing so, he acted as the “embodiment of public

condemnation and social outrage.” Bakker, 925 F.2d at 740.

“[W]e cannot, under the facts of this case, say that

defendant was prejudiced or that defendant was more severely

punished because” of the trial court’s religious invocation at

sentencing. State v. Bright, 301 N.C. 243, 262, 271 S.E.2d 368,

380 (1980).2 “In our opinion, the evidence in this case justified

2
See also State v. Ledwell, 171 N.C. App. 314, 321, 614 S.E.2d
562, 567 (2005) (holding that an error in sentencing was not
prejudicial when defendant was sentenced in the presumptive
range); United States v. Salama, 974 F.2d 520, 522 4th Cir.
(1992) (holding that the trial court’s improper statements
 -18-
the sentence imposed.” Bright, 301 N.C. at 262, 271 S.E.2d at

380. Nevertheless, we remind trial courts that “judges must take

care to avoid using language that could give rise to an

appearance that improper factors have played a role in the

judge’s decision-making process even when they have not.” State

v. Tice, 191 N.C. App. 506, 516, 664 S.E.2d 368, 375 (2008).

V. Conclusion

For the foregoing reasons, we conclude that defendant has

shown no prejudicial error at trial or sentencing and has failed

to show that he received ineffective assistance of counsel.

NO ERROR.

Judges CALABRIA and DAVIS concur.

regarding the defendant’s nationality did not constitute a due
process violation where “any impropriety of the district court’s
remarks did not infect the sentence.”), cert. denied, 507 U.S.
943, 122 L.Ed. 2d 727 (1993).