STATE of North Carolina
v.
Rufus Woodrow SINGLETON.
No. 8625SC977.
Court of Appeals of North Carolina.
April 7, 1987.*261 Atty. Gen. Lacy H. Thornburg, by Sp. Deputy Atty. Gen. Joan H. Byers and Asst. Atty. Gen. John H. Watters, Raleigh, for the State.
Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin by Lawrence D. McMahon, Jr. and Sam J. Ervin, IV, Marganton, for defendant-appellant.
ARNOLD, Judge.
Defendant first contends that the trial court erred in denying his motions to dismiss and in entering judgment because all of the indictments fail to charge a criminal offense as required by G.S. 15A-924(a)(5) since they do not specify the exact act performed by the defendant. We do not agree.
G.S. 15A-924(a)(5) states in part that a criminal pleading must contain:
A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
Each of the six counts in the three indictments for taking indecent liberties quotes the operative language of the indecent liberties statute and alleges that the defendant
unlawfully, willfully and feloniously did take and attempt to take immoral, improper *262 and indecent liberties with [the victim], who was under the age of 16 years at the time, for the purpose of arousing and gratifying sexual desire. At that time, the defendant was over 16 years of age and at least five years older than that child.
An indictment couched in the language of the statute is generally sufficient to charge the statutory offense. State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977). It is also generally true that indictments need only allege the ultimate facts constituting the elements of the criminal offense. Id.
In the present case, the indictments for taking indecent liberties contain plain and concise factual statements which assert facts that support the elements of the offense charged. We find that the indictments clearly inform defendant of the conduct which is the subject of the accusations as required by G.S. 15A-924(a)(5). We therefore hold that the indictments for taking indecent liberties sufficiently charge the offense and need not specify the exact act which constitutes the "immoral, improper and indecent liberty."
Likewise, we find that the indictment charging defendant with crime against nature is sufficient under G.S. 15A-924(a)(5). See State v. O'Keefe, 263 N.C. 53, 138 S.E.2d 767 (1964).
Defendant next contends that the court erred in admitting Mary Tate's testimony because it was not corroborative but presented new and prejudicial evidence. We disagree.
It is not necessary that evidence prove the precise facts brought out in a witness's testimony before that evidence may be deemed corroborative of such testimony and properly admissible. State v. Burns, 307 N.C. 224, 297 S.E.2d 384 (1982); State v. Higginbottom, 312 N.C. 760, 324 S.E.2d 834 (1985). The term "corroborate" means to strengthen and to add weight or credibility to a thing by additional and confirming facts or evidence. Id.
We find that Mary Tate's testimony strengthened the victim's testimony and was clearly corroborative. The characterization of defendant as a "sex maniac" was apparent from and consistent with the victim's trial testimony. The mention of the pornography is consistent with the victim's testimony about defendant taking nude photographs. We hold that the trial court properly admitted Mary Tate's testimony.
Defendant also contends that the trial court erred when it precluded him from providing an alternative explanation of the photographs by refusing either 1) to compel Joseph Lutz to testify about taking nude photographs of the victim, or 2) to admit an extrajudicial statement made by Lutz to Captain Whisnant. We find no merit in either argument.
When this case was heard in the trial court, there were charges pending against Joseph Lutz for committing a crime against nature with the victim. Lutz invoked his constitutional privilege against self-incrimination and refused to answer any questions except those asking his address and his age.
[T]he protection afforded by the privilege against self-incrimination "does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Maness v. Meyers, 419 U.S. 449, 461, 42 L. Ed. 2d 574, 585, 95 S. Ct. 584, 592 (1975); accord Smith v. Smith, 116 N.C. 386, 21 S.E. 196 (1895).
Johnson County Nat'l Bank and Trust Co. v. Grainger, 42 N.C.App. 337, 339, 256 S.E.2d 500, 502 (1979).
Although testimony by Lutz concerning nude photographs of the victim would not in itself subject him to criminal liability, such testimony reasonably could be used against him in a criminal prosecution for crime against nature and may furnish "a link in a chain of evidence" that could lead to prosecution. Therefore, the trial court did not err in refusing to compel Lutz to testify.
*263 Defendant alternatively argues that Lutz's statement to Captain Whisnant was erroneously excluded because it was admissible as a statement against penal interest.
We note that the protection afforded by the privilege against self-incrimination is much broader than the exception to the hearsay rule which permits the admission of statements against penal interest. A witness may invoke his Fifth Amendment privilege and refuse to testify on any matter which may be used against him in a criminal prosecution. The scope of the exception permitting admissions of statements against penal interest, however, only extends to matters which actually subject the witness to criminal liability.
On voir dire examination, Whisnant stated that Lutz told him the following:
Lutz advised he took some nude photographs of [the victim and her friend] and that they took some of each other; he stated he probably could pick out the ones he took; he stated he never took any of [the victim's] sister....
Lutz stated he had intercourse with [the victim's friend] but that [the victim] had performed fellatio on him.
Defendant asserts that Lutz's statement to Captain Whisnant concerning nude photographs of the victim should have been admitted under Rule 804(b)(3) of the North Carolina Rules of Evidence. Rule 804(b)(3) states that the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.
G.S. 8C-1, Rule 804(b)(3).
Defendant is correct in pointing out that Lutz is an "unavailable witness" under Rule 804(b)(3) due to his invocation of the privilege against self-incrimination. However, we do not believe that Rule 804(b)(3) is applicable to Lutz's statement concerning the nude photographs of the victim.
Rule 804(b)(3) requires that the statement "so far tended to subject him to ... criminal liability...." In State v. Haywood, 295 N.C. 709, 249 S.E.2d 429 (1978), which was heard prior to the enactment of Rule 804(b)(3) of the North Carolina Rules of Evidence, our Supreme Court set out several specific requirements for the admission of statements against penal interest. The Court held that such statements "must have had the potential of actually jeopardizing the personal liberty of the declarant at the time ... made...." Id. at 728, 249 S.E.2d at 441.
Rule 804(b)(3) of the North Carolina Rules of Evidence "contains no such specifics as were laid down in State v. Haywood,... but it seems probable that most, if not all of them will carry over under the Rule." 1 H. Brandis, Brandis on North Carolina Evidence, § 147 n. 79.4 (2d rev. ed. Supp. 1986).
We hold that Rule 804(b)(3) requires that in order for a statement to be admissible, it must actually subject the declarant to criminal liability.
The fact that Lutz may have taken nude photographs of the victim does not subject him to criminal liability. G.S. 14-202.1 does not apply to Lutz since he is not five years older than the victim. Therefore, we hold that Lutz's statement to Captain Whisnant was properly excluded by the trial court.
Defendant makes an additional argument that the exclusion of Lutz's statement to Captain Whisnant denied him his constitutional right of confrontation. A defendant has a constitutional right in a criminal prosecution to confront his accusers with other testimony. State v. Hill, 9 N.C. App. 279, 176 S.E.2d 41 (1970), rev'd on other grounds, 277 N.C. 547, 178 S.E.2d 462 (1971).
*264 Defendant concedes that some confrontational testimony was provided by Roy Lee Marcus. However, defendant argues that he was prevented from providing additional confrontational evidence. This contention is untenable. Defendant was free to present any relevant evidence so long as it was properly admissible under the North Carolina Rules of Evidence.
The Commentary to Rule 802 of the North Carolina Rules of Evidence states that "hearsay is simply inadmissible unless an exception is applicable." In this case, no exception allowed the admission of Lutz's statement to Captain Whisnant. Thus, we are not persuaded by defendant's argument that he was denied his constitutional right of confrontation.
Defendant further contends that G.S. 14-177, the crime against nature statute, is unconstitutional. The appellate courts of this state have held repeatedly that G.S. 14-177 is not unconstitutional. State v. Adams, 299 N.C. 699, 264 S.E.2d 46 (1980); State v. Poe, 40 N.C.App. 385, 252 S.E.2d 843, disc. rev. denied, 298 N.C. 303, 259 S.E.2d 304 (1979), appeal dismissed, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980).
We have reviewed defendant's remaining assignment of error and find it to be without merit. Accordingly, we find
No error.
MARTIN and GREENE, JJ., concur.