State v. Hudson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-230
NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA
Transylvania County
v. Nos. 10 CRS 925
10 CRS 51997
ROY DENNING HUDSON, 10 CRS 51999
Defendant. 10 CRS 52000-01
10 CRS 52003-08
10 CRS 52010

Appeal by defendant from judgments entered 30 August 2012

by Judge Mark E. Powell in Transylvania County Superior Court.

Heard in the Court of Appeals 9 September 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Natalie Whiteman Bacon, for the State.

Mark Montgomery for defendant-appellant.

GEER, Judge.

Defendant Roy Denning Hudson appeals from his convictions

of two counts of first degree sex offense with a child and 10

counts of indecent liberties with a child. On appeal, defendant

primarily argues that the trial court erred by failing to

intervene ex mero motu during the prosecutor's closing argument
 -2-
when, defendant contends, the prosecutor expressed a personal

opinion that the alleged victim was telling the truth.

Based upon our review of the closing arguments, we find

that the prosecutor's argument was responsive to defense

counsel's closing argument attacking the alleged victim's

credibility as a witness, asserting that the sex abuse never

occurred, and suggesting the alleged child victim had been

coached to falsely report the abuse. The prosecutor's closing

argument presented the jury with reasons to believe the alleged

victim and then argued, based on those reasons, that the jury

should conclude that the victim was, in fact, telling the truth.

The prosecutor did not express her personal opinion that the

alleged victim was telling the truth, and, therefore, the trial

court was not required to intervene.

Facts

The State's evidence tended to show the following facts.

Defendant and his wife, Judy Hudson, adopted David1 when David

was eight years old. Along with David, defendant and Ms. Hudson

adopted five other children during their eight-year marriage,

including their older, adopted son Anthony and David's younger

1
Pseudonyms are used throughout this opinion in order to
protect the identities of minor children and for ease of
reading.
 -3-
biological brother, Ricky. In addition, defendant and Ms.

Hudson served as foster parents for roughly 20 to 30 children.

David suffered from mental delays and had been enrolled in

special education classes since first grade. At 15 years old,

he read at a second grade level, and he struggled with the

concepts of numbers and math. He participated in the Special

Olympics.

Beginning at some point when David was 10 to 12 years old,

defendant began to sexually molest David. Defendant would bring

David into defendant's bedroom, lay David down on the bed facing

upward, pull off David's pants and underwear, and place David's

legs up in the air. Defendant would then remove his own pants,

touch David's penis, masturbate, and ejaculate onto David's

buttocks. Defendant would smear his semen around David's

buttocks, and then wipe David clean with a towel. This occurred

roughly 12 or 13 times over a two-year period, all while David

was 10 to 12 years old. On one occasion, David's oldest brother

Anthony was present and told David that he "had to do it to join

the boy's club." Defendant told David that "Anthony had to do

it too." Defendant also forced David to perform fellatio on

defendant five times.

Defendant told David that if David told anybody about the

abuse, defendant would kill David's brother Ricky. David had
 -4-
witnessed Ricky being abused in a prior home placement, and

David had been unable to protect Ricky from that abuse despite

trying to do so. David, similarly, tried to protect Ricky from

defendant by not telling anyone about defendant's abuse.

Defendant and Ms. Hudson very rarely had sex. At some

point during their marriage, defendant told Ms. Hudson he was

not attracted to her, but he admitted that he masturbated on a

daily basis. Defendant and Ms. Hudson separated in March 2009

and, after living briefly with defendant, David lived with Ms.

Hudson. In September 2009, David disclosed to Ms. Hudson that

defendant had "hurt" him and indicated masturbation to Ms.

Hudson. Ms. Hudson reported the abuse and, in September 2010,

David described the abuse to Kenny McAbee, the supervisor for

Child Protective Services of the Transylvania County Department

of Social Services.

On 15 September 2010, David also described the abuse to

Detective Michael Wade Abram of the Transylvania County

Sheriff's Office. Following his interview with David, Detective

Abram gave Anthony his card and asked Anthony to call him, but

Anthony never did. Prior to defendant's arrest, Detective Abram

called defendant and left a message, but defendant did not

return the detective's call.
 -5-
On 21 September 2010, David described defendant's abuse to

Christine Nicholson, a social worker with the Child Medical

Evaluation program at Mission Children's Specialist in

Asheville, North Carolina. David began seeing Polly Penland, a

clinical social worker and child therapist, for treatment in

October 2010. David described defendant's abuse to Ms. Penland

and, during treatment, David exhibited symptoms consistent with

children who have been sexually abused. Ms. Penland diagnosed

David with post-traumatic stress disorder and treated him using

trauma-focused cognitive behavior therapy.

On 15 November 2010, defendant was indicted for two counts

of first degree sex offense with a child and 11 counts of

indecent liberties with a child. Defendant testified in his own

defense and denied engaging in any inappropriate sexual conduct.

According to defendant, he has been unable to obtain an erection

since having surgery in 2005. Defendant testified he worked

long hours and was never alone with David in the house.

Defendant believed that either Ms. Hudson or David's birth

mother had directed David to falsely report the abuse.

Defendant also presented the testimony of his son Anthony,

who denied ever witnessing defendant abuse David and testified

that defendant was a loving and supportive father. Anthony was

22 years old and lived with defendant at the time of trial.
 -6-
Defendant's biological daughter Sally, who lived in the house

with David prior to defendant's and Ms. Hudson's separation,

testified that she could not remember a time that David was ever

alone with defendant at that house and that she had a good

relationship with defendant. Sally continued living with

defendant until a year or two prior to trial, at which point she

moved in with her biological mother because she was unsure how

defendant's trial would go.

Krissy Johnson, an investigator and assessor for the

Harnett County Department of Social Services, testified for the

defense that she made an unannounced visit to defendant's new

home in Harnett County on 10 September 2010, interviewed

defendant, Anthony, Sally, Ricky, and several of defendant's

family members who were visiting the home, and determined there

was no reason to remove any children from the home. The

children all reported being happy living with defendant.

Judy Jennings, the pastor of defendant's church in

Transylvania County, testified that defendant had been very

involved in the church, had served as the children's church

director for four or five years, and had performed background

checks on people who wanted to be involved with the children's

ministry. Ms. Jennings trusted defendant and had never received
 -7-
any complaints about him. She thought defendant was a "great"

parent.

The jury found defendant guilty of all the charges. The

trial court arrested judgment on one count of indecent liberties

with a child. The court sentenced defendant to two concurrent

presumptive-range sentences of 192 to 240 months for the two

counts of first degree sex offense with a child. These

concurrent sentences were followed by three consecutive

presumptive-range sentences of 16 to 20 months imprisonment for

the indecent liberties with a child convictions.2 Defendant

timely appealed to this Court.

I

Defendant first argues that the trial court erred in

allowing the State to present rebuttal evidence of David's

character for truthfulness. Rule 608(a) of the North Carolina

Rules of Evidence provides: "The credibility of a witness may be

attacked or supported by evidence in the form of reputation or

opinion as provided in Rule 405(a), but subject to these

limitations: (1) the evidence may refer only to character for

truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness
2
Eight of the indecent liberties convictions were
consolidated into a single judgment, while the court entered two
separate judgments for each of the two remaining indecent
liberties convictions.
 -8-
for truthfulness has been attacked by opinion or reputation

evidence or otherwise."

Following the close of defendant's evidence, the State

disclosed its intention to call a witness to testify regarding

David's character for truthfulness. Defendant objected, arguing

that David's character had not been called into question at

trial. The trial court overruled defendant's objection,

reasoning that "evidence ha[d] been presented that might tend to

show from at least one viewpoint that what [David] said [wa]s

not true" and that constituted an "indirect attack on his

credibility."

The State then called Charles "Mack" McKeller, David's

Special Olympics soccer coach, who testified as follows:

Q. And what is your opinion about
[David's] characteristic for being truthful?

A. My opinion is he is extremely
truthful. He is -- he is not one to make
things up if --

[DEFENSE COUNSEL]: Objection.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Move to strike.

THE COURT: Motion is allowed.

A. He is one who will ignore the
question rather than say something that
might not be true.
 -9-
[DEFENSE COUNSEL]: Objection.
Move to strike.

THE COURT: Overruled.

Q. And he has been reliable that way?

A. Very reliable that way.

Defendant argues that the trial court erred in allowing Mr.

McKeller to testify to David's character for truthfulness

because David's character for truthfulness "was never 'attacked'

within the meaning of" Rule 608(a). As an initial matter, the

State contends that defendant's argument is not preserved for

appeal since defendant failed to object to Mr. McKeller's

testimony that David had been "[v]ery reliable that way."

However, defendant's objection outside the presence of the jury

on this matter, along with defendant's objections to the two

immediately preceding questions during direct examination of Mr.

McKeller, was sufficient to preserve his argument for appeal.

See State v. Lawson, 173 N.C. App. 270, 275, 619 S.E.2d 410, 413

(2005) (when defendant objected to two of three of State's

questions prior to question eliciting challenged testimony,

holding "defendant's pattern of objections to the hearsay

testimony constituted a continuing objection to the line of

questioning and therefore all of the hearsay testimony may be

considered on appeal, although only part of the testimony was

objected to at trial").
 -10-
This Court has explained that a witness' character for

truthfulness is sufficiently attacked for purposes of Rule

608(a) when the opposing party introduces evidence contrary to

the witness' testimony. State v. Marecek, 152 N.C. App. 479,

506, 568 S.E.2d 237, 255 (2002) (holding that witness' character

for truth was attacked for purposes of Rule 608(a) when witness

did not testify but his pretrial statement was admitted into

evidence and opposing party introduced evidence contrary to

witness' statement).

In this case, defendant testified and expressly denied

engaging in any inappropriate sexual conduct with David.

Anthony, the brother who David testified was present during one

instance of abuse, testified for the defense that the alleged

incident never occurred. Sally, defendant's daughter, testified

for the defense that she could not recall David and defendant

ever having been alone in the house together. Accordingly,

defendant's evidence contradicted David's testimony, and the

trial court properly ruled that the State was permitted to

introduce, on rebuttal, evidence of David's character for

truthfulness.

Defendant further argues that the trial court erred in

admitting the testimony because the substance of Mr. McKeller's

testimony -- that David "is one who will ignore the question
 -11-
rather than say something that might not be true" -- constituted

evidence of specific instances of David's truthfulness since it

concerned "how [David] did or might act when asked to lie." We

disagree with defendant's characterization of the testimony.

Mr. McKeller did not provide evidence of any specific prior

incident involving David's truthfulness, but rather the

testimony expressed Mr. McKeller's opinion that David generally

either tells the truth or does not respond to questions at all.

We, therefore, hold the trial court did not err in admitting the

challenged evidence.

II

Defendant next argues that the trial court erred in failing

to intervene ex mero motu in response to various portions of the

State's closing argument. "'The standard of review for

assessing alleged improper closing arguments that fail to

provoke timely objection from opposing counsel is whether the

remarks were so grossly improper that the trial court committed

reversible error by failing to intervene ex mero motu.'" State

v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008)

(quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329,

338 (2006)). "'Under this standard, only an extreme impropriety

on the part of the prosecutor will compel this Court to hold

that the trial judge abused his discretion in not recognizing
 -12-
and correcting ex mero motu an argument that defense counsel

apparently did not believe was prejudicial when originally

spoken.'" Id. (quoting State v. Anthony, 354 N.C. 372, 427, 555

S.E.2d 557, 592 (2001)).

Defendant first contends that the prosecutor expressed her

personal opinion that David was telling the truth and that

defendant was guilty when the prosecutor argued:

[Child molesters] are everywhere. It could
be anybody.

It's him. It's him. The man that
wants you to believe that he is such a big
family man, the man with the big houses . .
. .

. . . .

They don't make up something like this.
They don't know about sexual activity. . . .

. . . .

He is sexually aroused by children, not
adult women. All right? That's why he is
not aroused and had trouble with Ms. Hudson.
. . .

. . . .

It's not a fantasy, ladies and
gentlemen. It's not just a story that he's
rehearsed over and over. . . .

. . . So these aren't inconsistencies,
ladies and gentlemen. This is further
bolstering support that it happened. That's
what that means, it happened. . . . How
could he pull something over like that on
that many -- that many professional people?
 -13-
How could he do that? He is not that savvy,
ladies and gentlemen. Okay? He is not that
good. He can't do that. That's because it
happened. It's the truth. What he told you
is the truth what happened to him.

. . . .

. . . But this wasn't some witch hunt,
this wasn't some conspiracy. Judy Hudson,
[David], Wade Abram, myself, Christine
Nicholson, Kenny McAbee, all of these people
in some conspiracy here to convict an
innocent man? Absolutely not. Absolutely
not. Because what [David] is saying is the
truth. He is telling the truth.

N.C. Gen. Stat. § 15A-1230(a) (2013) provides: "During a

closing argument to the jury an attorney may not become abusive,

inject his personal experiences, express his personal belief as

to the truth or falsity of the evidence or as to the guilt or

innocence of the defendant, or make arguments on the basis of

matters outside the record except for matters concerning which

the court may take judicial notice." The statute specifies

further, however, that "[a]n attorney may, . . . on the basis of

his analysis of the evidence, argue any position or conclusion

with respect to a matter in issue." Id.

Our Supreme Court has also explained that "'it is improper

for the prosecuting attorney to express his personal opinion or

belief in the guilt of the accused, unless it is apparent that

such opinion is based solely on the evidence, and not on any

reasons or information outside the evidence.'" State v. Britt,
 -14-
291 N.C. 528, 538, 231 S.E.2d 644, 651 (1977) (quoting 23A

C.J.S. Criminal Law § 1104).

We first address the propriety of the prosecutor's

arguments that (1) defendant was a child molester, (2) David

could not "make up" his story in this case, (3) defendant was

aroused by children and not adult women, and (4) David would not

be able to fool so many professional people because he was not

sufficiently savvy. Each of these arguments were based on the

evidence, including (1) David's testimony and his prior

consistent statements when he was 13 years old that defendant

molested him; (2) testimony regarding David's mental delays; (3)

Ms. Hudson's testimony that defendant told her he was not

attracted to her; and (4) evidence of the professional

credentials of Ms. Penland, Ms. Nicholson, and Mr. McAbee, to

whom David described the abuse.

Thus, even assuming, without deciding, that these

statements expressed the prosecutor's personal opinion regarding

David's truthfulness, each of these arguments was based on the

evidence at trial and reasonable inferences drawn from that

evidence. The trial court, therefore, did not err in failing to

intervene ex mero motu in these portions of the State's closing

argument. See id. at 537-38, 231 S.E.2d at 651 (holding

prosecutor's argument that defendant was "'guilty as sin'" and
 -15-
"'cold-blooded, deliberate murderer, regardless of what your

decision in this case is'" was proper since it was "based solely

upon evidence from which his inferences and conclusions could

legitimately be inferred").

Defendant also challenges the prosecutor's assertions that

David was telling the truth and that David's story was not a

fantasy. In State v. Wilkerson, 363 N.C. 382, 424, 683 S.E.2d

174, 200 (2009) (emphasis omitted), our Supreme Court addressed

the defendant's contention that the prosecutor's closing

arguments were improper when the prosecutor stated that one

witness "'told the truth, and what she said is corroborated'"

and, with respect to a second witness, that the prosecutor

called her as a witness "because I think she's telling the truth

. . . .'" The Supreme Court held that the prosecutor's argument

with respect to the first witness was not improper since "the

prosecutor did not personally vouch for her veracity but instead

provided jurors reason to believe [the witness] by arguing that

her testimony was truthful because it was corroborated." Id. at

425, 683 S.E.2d at 200. However, the Court held that "the

prosecutor's passing comment that he believed [the second

witness] was telling the truth violated section 15A–1230(a)."

Id., 683 S.E.2d at 201 (emphasis added).
 -16-
Here, the prosecutor did not either say she believed David

or otherwise personally vouch for David's veracity. Rather,

like the first portion of the prosecutor's argument in

Wilkerson, the State's references to David's telling the truth

followed the State's identification of reasons that the jury

should find David and his story credible. The trial court was

not, therefore, required to intervene in the State's closing

argument ex mero motu. See also State v. Zuniga, 320 N.C. 233,

256, 357 S.E.2d 898, 913 (1987) (finding "nothing improper" in

prosecutor's argument -- "'I submit to you that those witnesses

who testified on behalf of the State were telling you the truth

and, yes, that includes the taxi driver, Mr. Call'" -- when

argument was supported by evidence and defendant had full

opportunity on cross-examination to bring out discrepancies in

State's evidence).

Further, a prosecutor "'is allowed to respond to arguments

made by defense counsel and restore the credibility of a witness

who has been attacked in defendant's closing argument.'" State

v. Worthy, 341 N.C. 707, 711, 462 S.E.2d 482, 484 (1995)

(quoting State v. Perdue, 320 N.C. 51, 62, 357 S.E.2d 345, 352

(1987)). Here, the prosecutor's argument that David had told

the truth was in response to defense counsel's closing argument,

which was aimed in large part at discrediting David's trial
 -17-
testimony and prior statements by pointing out inconsistencies

between his prior statements and his trial testimony;

highlighting implausible aspects of David's story; and noting

all the details of the events that David was unable to provide.

Defendant also argued in closing that someone had prompted David

to falsely report the abuse, and David was unable to provide

many specific details because those details were not given to

him by the person who manufactured the story: "Perhaps . . .

[David] couldn't remember the details because the events never

happened at all." The prosecutor's argument was, therefore,

largely responsive to defendant's closing argument and was aimed

at restoring David's credibility.

Defendant nonetheless points to State v. Smith, 279 N.C.

163, 181 S.E.2d 458 (1971), and State v. Locklear, 294 N.C. 210,

241 S.E.2d 65 (1978), as establishing that the trial court, in

this case, erred. In Smith, however, the improper arguments

involved expressions of the prosecutor's personal beliefs about

the evidence and the defendant's guilt, 279 N.C. at 165, 166,

181 S.E.2d at 459, 460, whereas, here, the arguments merely set

forth a conclusion that the jury could reach from the evidence -

- the conclusion that David was, in fact, telling the truth.

Likewise, Locklear did not involve an argument regarding why a

jury should, based on the evidence, find a witness was credible,
 -18-
but rather addressed the prosecutor's question to a witness that

"'you are lying through your teeth and you know you are playing

with a perjury count; don't you?'" 294 N.C. at 214, 241 S.E.2d

at 68. The State's argument in this case, because it argued the

evidence, was, in contrast to Smith and Locklear, proper.

Defendant next points to the prosecutor's argument that

"[defendant's] own daughter has doubts. She is living with

somebody else. She doubts him too. Or maybe she knows more

than she is telling." Defendant contends that this argument

went outside of the evidence presented at trial.

Sally, who was 16 years old at the time of trial, testified

that she had lived with defendant her entire life, but she went

to live with her biological mother roughly a year or two prior

to the August 2012 trial -- that is, around or after the time

David first reported defendant's sex abuse in September 2010.

Sally further testified as follows:

Q. Why are you not with your dad now?

A. I'm not with my dad right now --
honestly?

Q. Yes.

A. Because I didn't know how the
court was going to go, so I was going to
move in with -- I was planning on moving in
with dad this summer, but then I had my own
doubts because I know how [Ms. Hudson] is
with everybody --
 -19-
[PROSECUTOR]: Objection.

THE COURT: Sustained.

A. -- in Transylvania County.

Q. You and your dad have a good
relationship?

A. We have an amazing relationship.

Q. Would you characterize your father
as a loving father?

A. Very much.

Q. Has he always been there for you?

A. He has.

Q. Do you know he will always be
there for you regardless?

A. All the time. I do.

Q. Do you have any doubts at all
about that?

A. Not at all.

(Emphasis added.)

In Worthy, while reviewing the prosecutor's closing

argument, our Supreme Court rejected the defendant's contention

that the record was "devoid of any evidence from which it could

be reasonably inferred that [a witness] had thoughts concerning

his future safety." 341 N.C. at 711, 462 S.E.2d at 484. The

Court observed that the witness "testified that prior to the

murder, he had intended to spend the night with defendant," but
 -20-
"after witnessing defendant shoot a man in the manner he

described, [the witness] decided to go home to his mother

instead." Id. The Court reasoned that, based on that evidence,

it was "certainly a reasonable inference that [the witness], who

at the time of trial was eleven years old, was afraid of the

prospects of facing defendant and giving testimony against him."

Id.

Similarly, here, Sally's testimony -- that she lived with

defendant her entire life, including after defendant's

separation from Ms. Hudson, but that she went to live with her

biological mother roughly at or after the time David first

reported defendant's sex abuse -- permits a reasonable inference

that she doubted defendant's innocence for some reason.

Although defendant points to Sally's testimony that her doubts

about moving in with defendant were related to Ms. Hudson, the

jury could reasonably have concluded that this testimony was not

credible and that Sally's change of plans were actually related

to the sex abuse allegations -- the prosecutor was entitled to

argue that the jury should draw that inference. As in Worthy,

the prosecutor did not argue facts outside of the evidence

presented at trial.

In his final argument related to the closing argument,

defendant asserts that the trial court erred in overruling his
 -21-
objection to the following portion of the prosecutor's closing

argument:

One thing [defendant] never answered, was
never asked during his examination by his
attorney, was why did you not return
Detective Abram's phone call? Why did you
not call him back? If you were so innocent
of this crime, wouldn't the first thing you
want to do is [sic] set it straight? Say,
hey, that's right --

[DEFENSE COUNSEL]: Objection, Your
Honor.

THE COURT: Overruled.

[PROSECUTOR]: -- I'm going to call
him up and I'm going to set this straight.

Defendant argues that this portion of the closing argument

violated his right to remain silent under the Due Process Clause

of the Fourteenth Amendment to the United States Constitution.

However, defendant did not raise this constitutional argument

before the trial court and, generally, "constitutional error

will not be considered for the first time on appeal." State v.

Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005).

Even assuming, without deciding, that defendant's

constitutional argument were properly before us, this Court has

previously held that "if the defendant is not yet under arrest,

the State may use the defendant's pre-arrest silence for

impeachment purposes at trial." State v. Boston, 191 N.C. App.

637, 648, 663 S.E.2d 886, 894 (2008). Here, the prosecutor's
 -22-
argument was based upon Detective Abram's testimony that his

call to defendant was made before defendant was arrested: "I

attempted to reach [defendant] at that number before this case

even came to the attention [sic] or the court had knowledge of

it." Consequently, if the argument was directed at impeaching

defendant's testimony, it did not violate his constitutional

right to silence.

Defendant testified at trial that the alleged sex abuse

never occurred, that he was never interviewed by law enforcement

in connection with this case, and that, prior to trial, he never

had a chance to tell his story. In his closing argument,

defense counsel argued to the jury: "This was [defendant's]

first time [to] tell his story. . . . Because prior to that

nobody had asked his story. Nobody had wanted to know his side

of the story. Not law enforcement . . . ."

Given defendant's trial testimony and his closing argument

emphasizing that testimony, it is apparent that the State's

closing argument was responding to counsel's argument and

impeaching defendant's testimony that defendant had never had a

chance to tell his side of the story. The State was simply

pointing out that defendant, prior to being arrested, had been

given an opportunity to talk with the police, but had chosen not

to do so. The State's argument was, therefore, proper.
 -23-
III

Lastly, defendant contends that the trial court erred in

referring to David as "the victim" when instructing the jury

regarding first degree sexual offense. Although the trial court

simply gave the pattern jury instruction, defendant argues that

references to "the victim" improperly suggested to the jury that

the trial court believed David to be the victim of a crime.

Defendant did not object to the instructions at trial, and

we, therefore, review this issue for plain error. This Court

has, however, previously held that "it is clear from case law

that the use of the term 'victim' in reference to prosecuting

witnesses does not constitute plain error when used in

instructions . . . ." State v. Henderson, 155 N.C. App. 719,

722, 574 S.E.2d 700, 703 (2003). We are bound by Henderson.

Defendant has, therefore, failed to show that the trial court's

instruction constituted plain error.

No error.

Chief Judge MARTIN and Judge STROUD concur.

Report per Rule 30(e).