State v. Walston

IN THE SUPREME COURT OF NORTH CAROLINA
No. 392PA13
Filed 19 December 2014

STATE OF NORTH CAROLINA

v.
ROBERT TIMOTHY WALSTON, SR.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 747 S.E.2d 720 (2013), finding

prejudicial error in defendant’s trial resulting in judgments entered on 17 February

2012 by Judge Cy A. Grant in Superior Court, Dare County, and ordering that

defendant receive a new trial. Heard in the Supreme Court on 9 September 2014.

Roy Cooper, Attorney General, by Sherri Horner Lawrence, Assistant Attorney
General, for the State-appellant.

Mark Montgomery for defendant-appellee.

NEWBY, Justice.

In this case we consider the admissibility of evidence of a pertinent character

trait of a criminal defendant under North Carolina Rule of Evidence 404(a)(1). For

character evidence to be admissible at trial under Rule 404(a)(1), an accused must

“tailor the evidence to a particular trait that is relevant to an issue in the case.”

State v. Squire, 321 N.C. 541, 546, 364 S.E.2d 354, 357 (1988). Defendant’s

proffered evidence of being respectful towards children was not sufficiently tailored

to the State’s charges of child sexual abuse and was thus inadmissible. Separately,
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Opinion of the Court

we consider the extent to which, if at all, use of the word “victim” in a trial court’s

jury charge amounts to prejudicial error. Based on long-standing precedent, the

trial court’s use of the term “victim” was not impermissible commentary on a

disputed issue of fact. Thus, the trial court did not err in denying defendant’s

request to use the words “alleged victim” instead of “victim” in its charge to the jury.

Accordingly, on both issues we reverse the decision of the Court of Appeals.

This case arose from incidents that occurred in 1988 and 1989 between

defendant and the prosecuting witnesses, E.C. and J.C., sisters who at the time of

the incidents were about seven and four years old, respectively. During the

relevant period, defendant’s wife operated an at-home day care where she watched

E.C., J.C., and their younger brother in addition to her own three children.

According to the State’s evidence, on several occasions defendant sexually abused

the prosecuting witnesses individually, with each child being unaware that the

other had been abused. Apparently, at some point several years later, J.C. and

E.C.’s mother became concerned that her daughters had been abused. As a result,

in 1994 E.C. and J.C. were interviewed by a social services worker and two sheriff’s

deputies. In those interviews both girls denied having been abused. No physical

exams were conducted at that time, and the sheriff’s office concluded that nothing

in the interviews indicated any type of sexual assault.

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Opinion of the Court

In 2001, for the first time, E.C. and J.C. confided in each other and their

parents that defendant had abused them. Seven years later, J.C. contacted law

enforcement to report the incidents; officers subsequently reached E.C., who

detailed similar incidents of her own. In January 2009 defendant was indicted on

two counts of first-degree sex offense with a child, five counts of first-degree rape of

a child, and seven counts of taking indecent liberties with a child. Superseding

indictments were filed on 14 November 2011.

The State’s evidence at trial relied almost exclusively on the testimony of

E.C. and J.C. The State also called witness K.B., who testified under North

Carolina Rule of Evidence 404(b) regarding alleged incidents of sexual abuse

involving defendant when she was approximately ten and defendant was eighteen.

Defendant took the stand in his own defense and also sought to introduce witness

testimony regarding his good character. Defense counsel summarized the character

witnesses’ proposed testimony in a voir dire proffer, stating that each witness would

testify to defendant’s traits of (1) being law-abiding, (2) having good character, and

(3) being respectful towards children. The trial court ruled that the testimony

regarding defendant’s law-abiding character trait would be admissible, but that

testimony about the other two traits was prohibited as a matter of law.

At another point in the trial, defendant proffered Dr. Moira Artigues’s voir

dire expert testimony on repressed and suggested memories, which the trial court

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Opinion of the Court

prohibited in all respects. During the jury instruction conference, defendant

unsuccessfully sought to have the word “victim” changed to “alleged victim” in the

pattern jury instructions used by the trial court. The jury found defendant guilty of

one count of first-degree sexual offense, three counts of first-degree rape, and five

counts of taking indecent liberties with a minor. Defendant appealed.

Defendant raised, inter alia, three issues on appeal. Defendant first argued

that the trial court erred in prohibiting witness testimony about his character under

Rule of Evidence 404(a)(1). State v. Walston, ___ N.C. App. ___, ___, 747 S.E.2d 720,

724 (2013). The Court of Appeals agreed, concluding that the trait of being

respectful towards children was relevant and admissible under the rule. Id. at ___,

747 S.E.2d at 725-26. As to defendant’s second issue on appeal, the Court of

Appeals agreed with defendant that the trial court erred in not substituting “alleged

victim” for the word “victim” in the pattern jury instructions. Id. at ___, 747 S.E.2d

at 726. According to the Court of Appeals, the use of the word “victim” “intimate[d]

the trial court’s belief that E.C. and J.C. were sexually assaulted,” which was “a

disputed issue of fact for the jury to resolve.” Id. at ___, 747 S.E.2d at 727. Given

that the State’s and defendant’s evidence “were in equipoise,” id. at ___, 747 S.E.2d

at 728, the Court of Appeals ordered a new trial because “the jury reasonably might

have reached a different verdict” had either of the trial court’s errors not occurred,

id. at ___, 747 S.E.2d at 726, 728; see N.C.G.S. § 15A-1443(a) (2013). Lastly,

defendant contended that the trial court erroneously excluded his proposed expert

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Opinion of the Court

testimony on repressed and suggested memory under North Carolina Rule of

Evidence 702. Id. at ___, 747 S.E.2d at 728. The Court of Appeals determined that

the trial court incorrectly relied on an earlier version of Rule 702 in arriving at its

conclusion. Id. at ___, 747 S.E.2d at 728. Rule 702 was amended in 2011. See Act

of June 17, 2011, ch. 283, sec. 1.3, 2011 N.C. Sess. Laws 1048, 1049. The amended

version applies to actions “commenced on or after” 1 October 2011. Id. at sec. 4.2, at

1051. Concluding that the “trigger date” for applying the new statute predated 14

November 2011, the date of the superseding indictments, the Court of Appeals

instructed the trial court, on retrial, to apply the newly-amended rule. Walston, ___

N.C. App. at ___, 747 S.E.2d at 728.

In response to the Court of Appeals’ holdings regarding the Rule 404(a)(1)

character evidence and the use of the word “victim” in the jury instructions, the

State petitioned this Court for discretionary review, which we allowed.

We first consider the State’s contention that the Court of Appeals erred in

holding that defendant should have been allowed to introduce evidence of his being

respectful towards children under Rule 404(a)(1). We agree with the State that

such character evidence was not sufficiently tailored to a relevant issue at trial to

satisfy the specific requirements of Rule 404(a)(1).

A jury’s perception of a defendant’s character can have a strong impact on its

determination of the defendant’s innocence or guilt. As a result, our legislature has

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Opinion of the Court

crafted specific rules to control the admission of character evidence at trial. See

N.C.G.S. § 8C-1, Rules 404, 405 (2013). Effective 1 July 1984, Rule 404 governs the

content of admissible character evidence and the contexts in which it may be

admitted. Rule 404(a) is a general rule of exclusion, stating that “[e]vidence of a

person’s character or a trait of his character is not admissible for the purpose of

proving that he acted in conformity therewith on a particular occasion.” Id. § 8C-1,

Rule 404(a). The rule’s federal counterpart uses substantially the same language.

Fed. R. Evid. 404(a)(1). The rule is of “fundamental importance in American law,”

implementing “the philosophy that a defendant should not be convicted because he

is an unsavory person, nor because of past misdeeds, but only because of his guilt of

the particular crime charged.” 1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence § 4:21 at 677 (4th ed. 2013). As the United States Supreme Court

stated in Michelson v. United States:

Courts that follow the common-law tradition
almost unanimously have come to disallow resort by the
prosecution to any kind of evidence of a defendant’s evil
character to establish a probability of his guilt. Not that
the law invests the defendant with a presumption of good
character, but it simply closes the whole matter of
character, disposition and reputation on the prosecution’s
case-in-chief. The state may not show defendant’s prior
trouble with the law, specific criminal acts, or ill name
among his neighbors, even though such facts might
logically be persuasive that he is by propensity a probable
perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said
to weigh too much with the jury and to so overpersuade
them as to prejudge one with a bad general record and

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Opinion of the Court

deny him a fair opportunity to defend against a particular
charge. The overriding policy of excluding such evidence,
despite its admitted probative value, is the practical
experience that its disallowance tends to prevent
confusion of issues, unfair surprise and undue prejudice.

335 U.S. 469, 475-76, 69 S. Ct. 213, 218-19, 93 L. Ed. 168, 173-74 (1948) (internal

citations and footnotes omitted).

Defendants in criminal cases, however, may utilize an exception under Rule

404(a) that “permits the accused to offer evidence of a ‘pertinent trait of his

character’ as circumstantial proof of his innocence.” State v. Bogle, 324 N.C. 190,

201, 376 S.E.2d 745, 751 (1989) (quoting N.C.G.S. § 8C-1, Rule 404(a)(1) (1988)).

This exception should be “restrictively construed” though because “Rule 404(a), as a

general rule, excludes character evidence.” State v. Sexton, 336 N.C. 321, 360, 444

S.E.2d 879, 901 (citation and quotation marks omitted), cert. denied, 513 U.S. 1006,

115 S. Ct. 525, 130 L. Ed. 2d 429 (1994). Thus, even though the term “pertinent” is

synonymous with the word “relevant,” State v. Squire, 321 N.C. at 547, 364 S.E.2d

at 358, for a trait to be pertinent under Rule 404(a)(1), it “must bear a special

relationship to or be involved in the crime charged,” State v. Laws, 345 N.C. 585,

596, 481 S.E.2d 641, 647 (1997) (citation, emphases, and quotation marks omitted).

In other words, to have evidence of his good character admitted at trial under Rule

404(a)(1), the accused must “tailor the evidence to a particular trait that is relevant

to an issue in the case.” Squire, 321 N.C. at 546, 364 S.E.2d at 357.

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Opinion of the Court

Our past application of Rule 404(a)(1) has not been so narrow as to preclude

evidence of a more generalized character trait such as being law-abiding. See id. at

546, 364 S.E.2d at 357. We have, however, consistently required the accused to

conform the character evidence to relevant traits, such as honesty for a defendant

charged with embezzlement, or peacefulness for a defendant charged with a crime

of violence. See, e.g., State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996)

(ruling that character evidence inadmissible under Rule 404(a)(1) “focused on

factual information about defendant’s behavior and appearance rather than

pertinent traits of his character”); Bogle, 324 N.C. at 202, 376 S.E.2d at 752 (holding

that “the traits of truthfulness and honesty are not ‘pertinent’ . . . to the crime of

trafficking in marijuana”); Squire, 321 N.C. at 548, 364 S.E.2d at 358 (noting that

generally the trait of being law-abiding is a relevant character trait); see also State

v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (noting, in defendant’s trial for

first-degree murder, that testimony about the defendant’s reputation for

“nonviolence or peacefulness” was admitted as “a pertinent trait of his character”),

cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000) ; State v.

Syriani, 333 N.C. 350, 384, 428 S.E.2d 118, 136 (same), cert. denied, 510 U.S. 948,

114 S. Ct. 392, 126 L. Ed. 2d 341 (1993); State v. Cummings, 332 N.C. 487, 507, 422

S.E.2d 692, 703 (1992) (same); State v. Garner, 330 N.C. 273, 289-90, 410 S.E.2d

861, 870 (1991) (same); State v. Gappins, 320 N.C. 64, 70, 357 S.E.2d 654, 658

(1987) (same); State v. Clapp, ___ N.C. App. ___, ___,761 S.E.2d 710, 718-19 (2014)

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Opinion of the Court

(concluding, in defendant’s trial for sexual offenses against a 13, 14, or 15 year old

child, that evidence defendant worked well with children and did not have an

unnatural lust to have sexual relations with children was not pertinent and was

“nothing more than an attestation to Defendant’s normalcy”); State v. Wagoner, 131

N.C. App. 285, 293, 506 S.E.2d 738, 743 (1998) (“[E]vidence of defendant’s general

psychological make-up is not pertinent to the commission of a sexual assault.”)

(internal quotation marks omitted), disc. rev. denied, 350 N.C. 105, 533 S.E.2d 476

(1999); State v. Mustafa, 113 N.C. App. 240, 246, 437 S.E.2d 906, 909 (determining

that evidence of the defendant’s good military record was not pertinent to a charge

of rape), cert. denied, 336 N.C. 613, 447 S.E.2d 409 (1994). Applying the

aforementioned principles, we now determine if defendant’s evidence in the present

case satisfied the requirements of Rule 404(a)(1).

In his proffer of character witness testimony to the court, defendant’s counsel

asserted three potentially pertinent traits to which the witnesses would attest: (1)

defendant’s good character; (2) defendant’s law-abiding nature; and (3) defendant’s

respect towards children. We conclude, and defendant does not dispute, that the

trial court correctly prohibited testimony of defendant’s general character under

Rule 404(a). We also conclude that testimony about defendant’s law-abiding

character trait was properly allowed under Rule 404(a)(1). See Squire, 321 N.C. at

548, 364 S.E.2d at 358. As to the last trait, we hold that the trial court did not err

in prohibiting evidence of defendant’s respectful attitude towards children. Being

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Opinion of the Court

respectful towards children does not bear a special relationship to the charges of

child sexual abuse, Laws, 345 N.C. at 596, 481 S.E.2d at 647, nor is the proposed

trait sufficiently tailored to those charges, Squire, 321 N.C. at 546, 364 S.E.2d at

357. Having a respectful or thoughtful attitude towards children does not preclude

a defendant from sexually abusing them. Sexton, 336 N.C. at 360, 444 S.E.2d at

901 (requiring that Rule 404(a)(1) be restrictively construed). Such evidence would

only be relevant if defendant were accused in some way of being disrespectful

towards children or if defendant had demonstrated further in his proffer that a

person who is respectful is less likely to be a sexual predator. Defendant provided

no evidence that there was a correlation between the two or that the trait of

respectfulness has any bearing on a person’s tendency to sexually abuse children.

As detailed above, our case law has repeatedly held that peacefulness is a pertinent

trait with regards to alleged acts of violence (under which defendant’s charges

would fall) and that truthfulness is admissible as a pertinent trait when defendant

is charged with crimes involving dishonesty. Defendant cites no case law from our

appellate courts in which we found traits similar to respectfulness towards children

to be pertinent. To the contrary, the Court of Appeals recently determined in State

v. Clapp that the defendant’s trait of “working well with children” was not pertinent

under Rule 404(a)(1) when the defendant was charged with child sexual offenses.

___ N.C. App. at ___, 761 S.E.2d at 718-19. Accordingly, the Court of Appeals erred

in the present case in overturning the trial court’s ruling on this issue.

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Opinion of the Court

The State also contends that there was no error in the trial court’s use of the

pattern jury instructions that include the term “victim.” At trial, counsel for

defendant objected to the trial court’s use of the pattern jury instructions and

requested that the court substitute the phrase “alleged victim” for “victim” when

giving the jury charge. The trial court did not modify the pattern instructions and

instructed the jury, in relevant part, as follows, in accordance with North Carolina

Pattern Jury Instructions, Criminal, 207.15.1 and 207.45.1:

First degree sexual offense. The defendant has been
charged with two counts, two charges of first degree
sexual offense. For you to find the defendant guilty of this
offense, the State must prove three things beyond a
reasonable doubt.

First, that the defendant engaged in a sexual act with the
victim. A sexual act means fellatio, which is any touching
by the lips or tongue of one person and the male sex organ
of another, or any penetration, however slight, by an
object into the genital opening of a person’s body.

Second, that at the time of the acts alleged the victim was
a child under the age of 13.

And third, that at the time of the alleged offense the
defendant was at least 12 years old and was at least four
years older than the victim.

Now if you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
engaged in a sexual act with the victim, E.C., in the living
room area of the defendant’s house by inserting his finger
into her vagina and that at that time the victim was a
child under the age of 13 years, and that the defendant
was at least 12 years old, and was at least four years
older than the victim, it would be your duty to return a

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Opinion of the Court

verdict of guilty. If you do not so find or if you have a
reasonable doubt as to one or more of these things, it will
be your duty to return a verdict of not guilty.

Also, if you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
engaged in a sexual act with the victim, J.C., in the
defendant’s bedroom by having the victim place his penis
in her mouth, and that at the time the victim was a child
under the age of 13 years, and that the defendant was at
least 12 years old and was at least four years older than
the victim, it would be your duty to return a verdict of
guilty.

If you do not so find or if you have a reasonable doubt as
to one or more of these things, it will be your duty to
return a verdict of not guilty.

First degree rape. The defendant has been charged with
three counts of first degree rape. For you to find the
defendant guilty of this offense the State must prove
three things beyond a reasonable doubt.

First, that the defendant engaged in vaginal intercourse
with the victim. Vaginal intercourse is penetration,
however slight, of the female sex organ by the male sex
organ. The actual emission of semen is not necessary. It
is not necessary that the vagina be entered or that the
hymen be ruptured. The entering of the labia is sufficient
to establish this element.

Second, at the time of the acts alleged the victim was a
child under the age of 13 years.

And third, that at the time of the acts alleged the
defendant was at least 12 years old and was at least four
years older than the victim.

So if you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
engaged in vaginal intercourse with the victim, J.C., in

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Opinion of the Court

the defendant’s car and that at the time the victim was a
child under the age of 13 years, and that the defendant
was at least 12 years old and was at least four years older
than the victim, it would be your duty to return a verdict
of guilty. If you do not so find or have a reasonable doubt
as to one or more of these things, it would be your duty to
return a verdict of not guilty.

If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant engaged
in vaginal intercourse with the victim, J.C., in the
bathroom of the defendant’s home and that at that time
the victim was a child under the age of 13 years and that
the defendant was at least 12 years old and was at least
four years older than the victim, it would be your duty to
return a verdict of guilty. If you do not so find or if you
have a reasonable doubt as to one or more of these things,
it will be your duty to return a verdict of not guilty.

Now if you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
engaged in vaginal intercourse with the victim, J.C., in
the second bedroom of the defendant’s home and that at
that time the victim was a child under the age of 13 years,
and that the defendant was at least 12 years old, and was
at least four years older than the victim, it would be your
duty to return a verdict of guilty. If you do not so find or
have a reasonable doubt as to one or more of these things,
it will be your duty to return a verdict of not guilty.

See 1 N.C.P.I.–Crim. 207.15.1, 207.45.1 (Jan. 2002) (emphases added).

The Court of Appeals determined that the trial court erred in using the word

“victim” instead of “alleged victim” in the jury instructions because whether the

prosecuting witnesses were victimized “was a disputed issue of fact for the jury to

resolve,” given the lack of physical evidence. Walston, ___ N.C. App. at ___, 747

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Opinion of the Court

S.E.2d at 727. The State insists that the Court of Appeals’ conclusion is contrary to

our long-standing precedent. We agree.

The jury charge is one of the most critical parts of a criminal trial. “Pattern”

jury instructions have existed for years, compiled as trial court judges individually

developed effective, appeals-tested instructions and informally shared them with

each other. 1 N.C.P.I.–Crim. Intro. 3-4 (2014). That process was formalized in

North Carolina in the 1960s when the North Carolina Conference of Superior Court

Judges appointed a committee of trial court judges to systematically draft pattern

jury instructions to be used across the state. Id. at 4. The first edition of the North

Carolina Pattern Jury Instructions was published for public use in 1973. Id. at 5.

Since then, subsequent committees have continued the meticulous work of refining

and revising the pattern instructions to reflect changes in both the general statutes

and case law. Id.

Though the pattern instructions have “neither the force nor the effect of law,”

State v. Warren, 348 N.C. 80, 119, 499 S.E.2d 431, 453, cert. denied, 525 U.S. 915,

119 S. Ct. 263, 142 L. Ed. 2d 216 (1998), we have often approved of jury instructions

that are consistent with the pattern instructions, see, e.g., State v. Steen, 352 N.C.

227, 275, 536 S.E.2d 1, 29 (2000) (approving of jury instructions that followed the

pattern instructions “almost verbatim”), cert. denied, 531 U.S. 1167, 121 S. Ct. 1131,

148 L. Ed. 2d 997 (2001); State v. DeCastro, 342 N.C. 667, 693, 467 S.E.2d 653, 666

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Opinion of the Court

(holding that instructions “virtually identical” to the pattern jury instructions were

a correct statement of the law), cert. denied, 519 U.S. 896, 117 S. Ct. 241, 136 L. Ed.

2d 170 (1996). Those holdings reflect the continual efforts of the pattern jury

instructions committees to draft instructions consistent with “the long-standing,

published understanding” of our case law and statutes. Stark v. Ford Motor Co.,

365 N.C. 468, 478, 723 S.E.2d 753, 760 (2012). That being said, in giving jury

instructions, “the court is not required to follow any particular form,” as long as the

instruction adequately explains “each essential element of the offense.” State v.

Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985) (citation and quotation marks

omitted).

The term “victim” appears frequently in our state’s pattern jury instructions.

Unsurprisingly, this is not the first time we have addressed whether use of the term

in jury instructions is error. In State v. Hill, we concluded that use of the term

“victim” was not improper and was not “intimating that the defendant committed

the crime.” 331 N.C. 387, 411, 417 S.E.2d 765, 777 (1992), cert. denied, 507 U.S.

924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993). We made the same observation in

State v. Gaines. 345 N.C. 647, 675, 483 S.E.2d 396, 413, cert. denied, 522 U.S. 900,

118 S. Ct. 248, 139 L. Ed. 2d 177 (1997). In State v. McCarroll, in which a

defendant was charged with several child sexual abuse counts, we considered the

defendant’s argument that the trial court’s use of the term “victim” in the jury

charge was prejudicial when referring to the thirteen-year-old prosecuting witness.

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Opinion of the Court

336 N.C. 559, 565-66, 445 S.E.2d 18, 22 (1994). Observing that “[t]he judge

properly placed the burden of proof on the State” in his instructions, we determined

the trial court did not commit plain error in its use of the word “victim” in that case.

Id. at 566, 445 S.E.2d at 22.

Accordingly, we hold in this case that the trial court did not err in using the

word “victim” in the pattern jury instructions to describe the complaining witnesses.

We stress, however, when the State offers no physical evidence of injury to the

complaining witnesses and no corroborating eyewitness testimony, the best practice

would be for the trial court to modify the pattern jury instructions at defendant’s

request to use the phrase “alleged victim” or “prosecuting witness” instead of

“victim.” As the pattern jury instructions themselves note, “all pattern instructions

should be carefully read and adaptations made, if necessary, before any instruction

is given to the jury.” 1 N.C.P.I.–Crim. at xix (“Guide to the Use of this Book”) (2014).

The trial court was correct in concluding that defendant’s character evidence

of his respectful attitude towards children was inadmissible under Rule of Evidence

404(a)(1). Such testimony was not tailored to a pertinent trait of defendant’s

character. So too, the trial court’s use of the word “victim” in the jury instructions

was not error. It was improper for the Court of Appeals to order a new trial based

on these two issues. On remand the Court of Appeals should address fully whether

the trial court’s application of the former expert witness standard was prejudicial

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Opinion of the Court

error. The decision of the Court of Appeals is reversed and the matter is remanded

for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

Justice HUNTER did not participate in the consideration or decision of this

case.

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