An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-897
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 10 CRS 201603-04
JASON RICHARD CHAPIN
Appeal by defendant from judgments entered 11 September
2012 by Judge Paul C. Ridgeway in Wake County Superior Court.
Heard in the Court of Appeals 8 January 2014.
Roy Cooper, Attorney General, by Anne M. Middleton,
Assistant Attorney General, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
DAVIS, Judge.
Jason Richard Chapin (“Defendant”) appeals from his
convictions of various sex offenses. On appeal, Defendant
contends that the trial court (1) committed plain error by
allowing the introduction of testimony regarding his viewing of
pornography; (2) committed plain error by permitting the
prosecutor to ask a witness if her testimony was truthful; and
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(3) improperly denied his trial counsel’s request for a modified
jury instruction. After careful review, we conclude that
Defendant received a fair trial free from prejudicial error.
Factual Background
The State presented evidence at trial tending to establish
the following facts: Sally1, Defendant’s daughter, was born on 7
November 1996 and was fifteen at the time of trial. Defendant
was married to Sally’s mother, Melissa Vestal (“Ms. Vestal”),
for several years before separating when Sally was seven years
old.
After Sally’s parents divorced, her mother married David
Vestal. After the divorce, Sally went to live with her mother
and stepfather along with her brother, two stepsiblings, and two
half-siblings. However, Sally did not enjoy living with her
mother and preferred living with Defendant because she and
Defendant would “hang out, go to the gym, [and] go out to eat.”
Conversely, Sally and her mother had a strained relationship.
Sally began to live with Defendant at the time she was
entering into adolescence. Over time, Defendant began changing
their parent–child relationship into a sexual relationship. On
1
Pseudonyms are used throughout this opinion to protect the
identities of individuals who were minors at the time of the
incidents described herein.
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occasion, Defendant took her shopping at Victoria’s Secret.
While at the store, she would pick out certain bras and
underwear and upon returning home would model them for Defendant
at his request. Defendant also gave Sally several thongs and
corsets that belonged to one of his girlfriends. Sally would
model those items for Defendant as well. Defendant would
sometimes tell Sally that they did not have a “normal father-
daughter relationship.”
A number of other incidents occurred that made Sally feel
increasingly uncomfortable around Defendant. On one occasion,
Sally needed to use a printer to print a document for school.
She “went on [Defendant’s] computer because he told [her] to get
on it.” When Sally went to use the computer, she saw
pornographic images that were “already up,” displaying images of
“girls and guys having sex and girls and girls.”
On several occasions, Defendant shaved Sally’s legs and
vaginal area. The first such incident occurred when Sally,
Defendant, and Defendant’s girlfriend were getting ready to
leave their residence to attend a wedding. Defendant told Sally
that she needed to shave her legs, and Defendant’s girlfriend
tried to show Sally how to do so by letting Sally observe her
shaving her own legs. However, Defendant became angry because
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they were running late and made Sally put her legs on the toilet
so he could shave them himself.
The next shaving incident occurred after Defendant and his
girlfriend had separated. Sally was in the shower and called
out for Defendant to bring her a razor. Defendant brought Sally
a razor, looked at her legs and vaginal area, and stated:
“[W]ow, that’s really hairy. That’s gross.” He left the shower
briefly and returned wearing a bathing suit. He then entered
the shower and shaved her legs and vaginal area. Similar
incidents occurred during the latter part of Sally’s sixth grade
year.
On another occasion, Sally returned home from the gym and
was waiting to take a shower before she and Defendant went out
to dinner. Defendant told Sally to use his shower and that it
would be faster if the two rinsed off together. Sally and
Defendant then proceeded to shower together.
When Sally was in the seventh grade, Defendant began coming
into her room and touching her body in inappropriate places.
Sally described an incident when she was lying down in her bed
but was unable to sleep. Defendant came into her room to lay
down beside her. While Defendant was lying next to her, he
rubbed cocoa butter on her breasts, took off her pants and
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underwear, and proceeded to “hump on top of [her],” rubbing his
penis against her while his pants were off. Sally pretended to
be asleep during this incident.
Similar conduct by Defendant occurred “like once a week,
then twice a week and then three times a week,” including two
instances during which Defendant digitally penetrated Sally’s
vagina. The sexual activity was not just confined to Sally’s
bedroom; it also occurred in Defendant’s bedroom and on the
couch.
At some point, Sally confided in a friend from school,
“Lee,” in general terms about Defendant’s sexual abuse of her.
However, she never told Lee any specific details about
Defendant’s conduct and asked that Lee not repeat anything she
said to others.
On 11 December 2009, Sally was confronted at her school by
two employees from the Child Protective Services Division
(“CPS”) within Wake County Human Services. They asked Sally “if
anyone had given her a private touch or a bad touch.” Sally at
first denied any improper conduct by Defendant. However, she
ultimately admitted that Defendant had sexually abused her and
provided a written statement, detailing the sexual acts he had
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performed on her. At that point, Sally went to live with her
mother and was not allowed any further contact with Defendant.
On 19 January 2010, a warrant was issued for Defendant’s
arrest. Defendant was indicted and charged with seven counts of
indecent liberties with a child; two counts of sexual offense of
a person who is 13, 14, or 15; and two counts of attempted
first-degree rape. A jury trial was held in Wake County
Superior Court in July 2011. The jury found Defendant not
guilty on the two counts charging attempted first-degree rape.
However, because the jury could not reach verdicts on the
remaining charges, the court declared a mistrial. A second jury
trial took place in Wake County Superior Court on 4 September
2012.
During trial, Rosalie Bealer (“Ms. Bealer”), a CPS worker
employed by Wake County Human Services, testified about her
investigation of Sally’s abuse allegations. She stated that
during her interview of Ms. Vestal, Sally’s mother had
remembered an incident involving her sister, Rebecca Allen (“Ms.
Allen”), in which Defendant had inappropriately touched Ms.
Allen while she was asleep. Ms. Bealer interviewed Ms. Allen
who related an incident that had occurred when Ms. Allen was
seventeen years old and staying at Defendant’s house. On this
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occasion, Defendant “took his finger and rubbed [Ms. Allen’s]
vagina.” She stated to Ms. Bealer that when she “asked him what
are you doing . . . he ran to the bathroom and said I'm sorry.”
The State’s final witness, Christine Adams (“Ms. Adams”),
testified about her own relationship with Defendant. She stated
that on 10 April 2010 she and Defendant became romantically
involved and later became engaged. However, their relationship
soured, and they eventually separated. Ms. Adams testified that
“I think he looked at [Sally] like a girlfriend and not, you
know, I think he was obsessed with her like he was with Melissa
or me . . . .” At the close of her direct examination, she was
asked by the prosecutor if her testimony was true and she
answered: “Yes.”
At the close of the State’s evidence, the trial court
dismissed one of the first-degree sexual offense charges. The
jury found Defendant guilty of one count of first-degree sexual
offense with a child under 13; two counts of first-degree sexual
offense with a child 13, 14, or 15 years of age; and seven
counts of taking indecent liberties with a child. The trial
court sentenced Defendant to a presumptive range term of 192 to
240 months imprisonment for one count of first-degree sexual
offense, consolidated the remaining offenses, and sentenced
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Defendant to a consecutive presumptive range term of 192 to 240
months imprisonment. In addition, Defendant was ordered to
register as a sex offender and be subject to satellite–based
monitoring for life. Defendant gave notice of appeal in open
court.
Analysis
I. Testimony Regarding Defendant’s Viewing of Pornography
Defendant first contends that the trial court erred when it
“repeatedly allowed and failed to strike on its own motion
testimony about [Defendant’s] viewing of pornography when the
conduct he was accused of had nothing to do with the viewing of
pornography.” At the outset, we note that Defendant did not
object to the admission of this evidence at trial. Accordingly,
we review this argument only for plain error. N.C.R. App. P.
10(a)(4). To successfully establish plain error, a “defendant
must demonstrate that a fundamental error occurred at trial” —
meaning that the error was such that it “had a probable impact
on the jury's finding that the defendant was guilty.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citation and quotation marks omitted).
“The admissibility of evidence is governed by a threshold
inquiry into its relevance. In order to be relevant, the
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evidence must have a logical tendency to prove any fact that is
of consequence in the case being litigated.” State v. Griffin,
136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (citation and
quotation marks omitted), appeal dismissed and disc. review
denied, 351 N.C. 644, 543 S.E.2d 877 (2000). It is well settled
that in a criminal case, any evidence which sheds light upon the
alleged crime is admissible. State v. Streckfuss, 171 N.C. App.
81, 88, 614 S.E.2d 323, 327 (2005). Moreover, evidence meets
the test of relevancy if it has any logical tendency, however
slight, to prove a fact in issue. State v. Lloyd, 187 N.C. App.
174, 177, 652 S.E.2d 299, 301 (2007), cert. denied, 363 N.C.
586, 683 S.E.2d 214 (2009).
Here, Sally testified that Defendant told her to use his
computer at a time when pornography was displayed on the screen.
At trial, Defendant offered the testimony of Dr. H.D. Kilpatrick
(“Dr. Kilpatrick”), an expert in forensic psychology. Dr.
Kilpatrick reviewed the information pertaining to the
allegations of sexual abuse by Defendant using a multiple
hypothesis method. He testified that events such as modeling
lingerie and cuddling were concerning because they were
potentially grooming activities — used to set the child up for a
sexual relationship.
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Sally’s testimony raised the inference that Defendant
knowingly let her view pornography on his computer, conduct that
was consistent with the type of grooming activities described by
Dr. Kilpatrick and, therefore, relevant to the charges against
him. In addition, the evidence was also arguably relevant to
show Defendant’s “preparation and plan to engage in sexual
[acts] with her and assist in the preparation and plan by making
[her] aware of such sexual conduct and arousing her.” State v.
Williams, 318 N.C. 624, 632, 350 S.E.2d 353, 358 (1986) (holding
that daughter's presence at an x-rated film at defendant's
insistence, coupled with his comments, showed his plan and
preparation to engage in a sexual relationship with her).
Defendant relies on State v. Bush, 164 N.C. App. 254, 595
S.E.2d 715 (2004), in support of his argument that “the only
thing that the evidence of the pornography in [Defendant’s]
trial accomplished was to put his character in a bad light.” In
Bush, the defendant was charged with first-degree sexual assault
with a minor. At trial, the State offered evidence that after
the sexual incident occurred, the defendant brought a
pornographic video into the home but did not offer any evidence
that it was viewed by the minor or used to seduce the minor.
Id. at 261, 595 S.E.2d at 719. This Court held that evidence of
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defendant’s “possession of pornographic materials, without any
evidence that defendant had viewed the pornographic materials
with the victim, or any evidence that defendant had asked the
victim to look at the pornographic materials . . . was not
relevant to proving defendant committed the alleged offenses in
the instant case and should not have been admitted by the
court.” Id. at 262, 595 S.E.2d at 720 (citations and quotation
marks omitted and emphasis added).
The present case is distinguishable because here, unlike in
Bush, Sally actually saw the pornography on Defendant’s
computer. Sally testified:
Q. And do you recall what was happening in
the
porn site that you could see?
A. Just like everything.
Q. Help us understand what you mean by
"everything."
A. Like girls and guys having sex and girls
and girls. Just stuff like that.
Q. Did you have to click on like -- did you
have to navigate to that or when you went to
the computer it was just there?
A. It was already up.
Therefore, because in this case the victim actually saw the
pornography under circumstances permitting the inference that
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Defendant intended for her to view it and become aroused by it,
the admission of this evidence was not error at all — much less
plain error.
II. Admission of Testimony That Witness Was Telling the Truth
Defendant next contends that the trial court committed
plain error when it admitted the following testimony of Ms.
Adams:
Q. And this testimony that you’re giving
here today, is it true to the best of your
knowledge?
A. Yes.
Because Defendant did not object to this testimony at
trial, he — once again — bears the burden of showing that the
admission of this evidence constituted plain error.
The question of whether a witness is telling
the truth is a question of credibility and
is a matter for the jury alone. Therefore .
. . it is improper for . . . counsel to ask
a witness (who has already sworn an oath to
tell the truth) whether he has in fact
spoken the truth during his testimony.
State v. Streater, 197 N.C. App. 632, 645, 678 S.E.2d 367, 376,
disc. rev. denied, 363 N.C. 661, 687 S.E.2d 293 (2009)
(citations and quotation marks omitted).
In Streater, the defendant was convicted of several
offenses stemming from his act of sexual intercourse with a
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four-year-old girl. On appeal, the defendant argued that the
court had committed plain error by allowing the victim to
testify as to her own truthfulness. Id. at 639, 678 S.E.2d at
372. This Court held that the trial court erred when it allowed
the victim to testify that she “told the truth” in response to
the prosecutor’s questions on direct examination. Id. at 645,
678 S.E.2d at 376. However, we ruled that such error did not
rise to the level of plain error in light of the “physical
evidence of vaginal penetration presented . . . and the victim's
prior consistent statements.” Id. at 646, 678 S.E.2d at 376-77.
Here, we conclude that the trial court did err in allowing
the admission of Ms. Adams’ answer to the prosecutor’s question
regarding the truthfulness of her testimony. However, we do not
believe that this error rose to the level of plain error. The
State presented evidence of Defendant engaging in sexual
activity with Sally for a period of years starting when Sally
was under the age of thirteen. Sally testified as to multiple
occurrences of sexual abuse inflicted on her by Defendant during
this time, including instances in which he (1) rubbed her
breasts and vagina and then took off her clothes and “started to
hump [her]”; (2) penetrated her vagina with his finger; and (3)
shaved her legs and vaginal area while showering. In light of
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this overwhelming evidence of guilt, any error in the admission
of this testimony was not so fundamental that it had a probable
impact on the jury's finding that the Defendant was guilty.
Accordingly, he has failed to show plain error.
III. Jury Instructions
At trial, Defendant’s counsel raised the following concern
as to the proposed jury instruction on “Evidence of Similar Acts
or Crimes” as it related to Ms. Bealer’s testimony regarding the
information Ms. Allen had related to her during her interview:
That evidence relates to Rebecca Allen, who
was not a witness to this trial, so I think
in fairness, your Honor, we either have to
qualify that evidence as hearsay evidence
that’s been received or offer some
instruction with regard to my inability to
cross-examine her.
This portion of the jury instruction — as ultimately given
by the trial court — stated as follows:
Evidence has been received tending to show
that the defendant touched the genital area
of Rebecca Allen, who was seventeen years
old at the time, while she was a house guest
of the defendant and his [w]ife. This
evidence was received solely for the
purposes of showing that there existed in
the mind of the defendant a planned scheme,
system, or design involving the crimes -
charged in this case, the absence of
mistake, the absence of accident. If you
believe this evidence you may consider it
but only for the limited purpose for which
it was received. You may not consider it
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for any other purpose.
You may find that a witness is interested in
the outcome of this trial. You may take the
witness's interest into account in deciding
whether to believe the witness. If you
believe the testimony of the witness in
whole or part you should treat what you
believe the same as any other believable
evidence.
Defense counsel requested that the trial court add the word
“hearsay” prior to the word “evidence” in this portion of the
instruction. The court declined to make the requested
modification, noting that the testimony at issue had been
received without objection and that it was aware of no basis for
instructing the jury in the manner requested by Defendant. We
agree with the trial court’s reasoning.
Defendant was free to object to the alleged hearsay
evidence at the time it was introduced by the State but failed
to do so. He likewise failed to request a limiting instruction
at the time the evidence was introduced that would have informed
the jury that this evidence could be considered only for a
specified limited purpose. “The admission of evidence,
competent for a restricted purpose, will not be held error in
the absence of a request by defendant for a limiting
instruction.” State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d
728, 735 (1989)
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Defendant has failed to cite any caselaw supporting his
novel argument that the jury should have been instructed that
the evidence was “hearsay evidence” under these circumstances.
Nor has our own independent research disclosed any case in which
North Carolina courts have required a trial court to give such a
modified jury instruction under analogous circumstances. This
argument is, therefore, overruled.2
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from prejudicial error.
NO PREJUDICIAL ERROR.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
2
Defendant also asserts that his rights under the Confrontation
Clause were violated by the admission of the out-of-court
statement of Ms. Allen. However, it is well settled that
constitutional issues “not raised and passed upon at trial will
not be considered for the first time on appeal.” State v.
Garcia, 358 N.C. 382, 415, 597 S.E.2d 724, 748 (2004).
Defendant did not raise his Confrontation Clause argument at
trial. Therefore, he has failed to preserve this issue for
appellate review. See State v. Flippen, 349 N.C. 264, 276, 506
S.E.2d 702, 709–10 (1998) (holding that defendant's failure to
raise constitutional issue at trial waived appellate review of
that issue, cert. denied, 526 U.S. 1135, 143 L.Ed.2d 1015
(1999).
State v. Chapin
Combined Opinion