An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-659
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:   1 April 2014


STATE OF NORTH CAROLINA

      v.                                      Rockingham County
                                              Nos. 10 CRS 50917-18
                                                   12 CRS 1601
JERRY MICHAEL SPARKS



      Appeal by defendant from judgments entered 29 August 2012

by Judge Judson D. DeRamus in Rockingham County Superior Court.

Heard in the Court of Appeals 23 October 2013.


      Roy Cooper, Attorney General, by Belinda A. Smith, Special
      Deputy Attorney General, for the State.

      Glenn Gerding for defendant-appellant.


      DAVIS, Judge.


      Defendant Jerry Michael Sparks (“Defendant”) appeals from

his convictions of various sex offenses.               On appeal, he contends

the   trial    court    erred    in   excluding     evidence     of    third–party

guilt.        After    careful    review,     we   conclude     that    Defendant

received a fair trial free from error.

                              Factual Background
                                        -2-
      The State presented evidence at trial tending to establish

the following facts:          Defendant and Sherri Smith (“Ms. Smith”),

who were not married, had a daughter, Heather,1 in 2001.                     After a

tumultuous relationship, the couple separated and entered into a

custody    dispute     involving      Heather.       Between    2006       and   2009,

Defendant had an “off and on” relationship with Krystal Ellison

(“Ms.     Ellison”),    who     had    a     son,    Jeff,   from      a    previous

relationship.     While Defendant and Ms. Ellison were dating, Ms.

Ellison lived with Defendant at his trailer, and Jeff lived with

his     grandmother     and     step-grandfather,        John     Clarke         (“Mr.

Clarke”).

      During this time, Defendant had a tent in his backyard.

Jeff testified at trial about an incident in which he, Heather,

and Defendant were present in the tent together and Defendant

made Jeff and Heather remove their clothes and “hump” each other

while     Defendant    “humped”       Jeff    from   behind.        Jeff     further

testified after they left the tent, they went inside the trailer

and that once inside, Defendant touched Jeff’s “butt” with his

penis and then made Jeff retrieve soap from the bathroom.                         Jeff

gave Defendant the bathroom soap, and Defendant proceeded to




1
  Pseudonyms are used throughout this opinion to protect the
privacy of the juveniles mentioned herein.
                                          -3-
place the soap on his genitals.                 After doing so, he began to

“hump” Jeff again.

      Heather    also    testified    about     the   incident    that    occurred

inside Defendant’s tent.             She stated       that Defendant put his

fingers “up [her] bottom” while she was standing in the tent

with Jeff and that afterward, they all went inside the trailer

and “got into bed.”

      Jeff    also   testified       as    to    other   instances       in   which

Defendant “humped” him.          On one such occasion, Defendant woke

him up and “told [him] to go into the bedroom.”                  Once they were

in the bedroom, Defendant placed his hands on Jeff’s genitals

and “humped” him again.

      Defendant was charged with two counts of sexual act with a

child and two counts of indecent liberties.                This matter came on

for   trial     during   the   20    August      2012    Criminal    Session    of

Rockingham    County     Superior    Court.       The    jury   found    Defendant

guilty of one count of sexual act with a child and two counts of

indecent liberties.       The trial court consolidated the sexual act

with a child offense and one count of indecent liberties and

sentenced Defendant to a presumptive range term of 336 to 413

months imprisonment.        The trial court also sentenced Defendant

to a presumptive range term of 21 to 26 months for the remaining
                                        -4-
indecent liberties conviction and a concurrent sentence of 30

days    imprisonment      for   direct      criminal    contempt       with   these

sentences    beginning     to   run    at     the   expiration    of    the   first

sentence.    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

       Defendant argues that the trial court erred in excluding

evidence    that    (1)   Jeff’s      step-grandfather,     Mr.    Clarke,      had

previously   been    convicted     of    molesting     a   nine-year-old       boy,

seven-year-old girl, and five-year-old girl; and (2) Jeff told

Defendant that Mr. Clarke was “doing stuff to him.”                      Defendant

argues that this evidence was relevant to show either that Mr.

Clarke, rather than Defendant, committed the crimes for which

Defendant was convicted, or that, in the alternative, Jeff’s

family — knowing Mr. Clarke’s history as a sexual offender —

created a similar story for Jeff to allege against Defendant.

Defendant asserts that the exclusion of this evidence deprived

him of his right to present a defense, which includes the right

to present relevant evidence tending to show that someone else

might have    committed the crime with which the                  Defendant was

charged.
                                      -5-
    The      admissibility    of    evidence   suggesting     the   potential

guilt of a third party is governed by the general principle of

relevancy set out in Rule 401 of the North Carolina Rules of

Evidence.     State v. Bullock, 154 N.C. App. 234, 241, 574 S.E.2d

17, 22 (2002).

             Evidence that another committed the crime
             for which the defendant is charged generally
             is relevant and admissible as long as it
             does more than create an inference or
             conjecture in this regard. It must point
             directly to the guilt of the other party.
             Under Rule 401 such evidence must tend both
             to implicate another and be inconsistent
             with the guilt of the defendant.

State   v.   Cotton,   318   N.C.   663,    667,   351   S.E.2d   277,   279-80

(1987) (internal citations omitted).           However,

             evidence which tends to show nothing more
             than that someone other than the accused had
             an   opportunity  to  commit   the  offense,
             without tending to show that such person
             actually did commit the offense and that
             therefore the defendant did not do so, is
             too remote to be relevant and should be
             excluded.

State v. Brewer, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989)

(citation and quotation marks omitted), cert. denied, 495 U.S.

951, 109 L.Ed.2d 541 (1990).

    Our decision in State v. Couser, 163 N.C. App. 727, 594

S.E.2d 420 (2004), is instructive.           In Couser, the defendant was

charged with attempted statutory rape of a minor and taking
                                         -6-
indecent liberties with a child.               At trial, the defendant sought

to introduce evidence that the victim’s father had previously

been convicted of sexually abusing the victim’s sister and that

this evidence tended to show that the victim's father, not the

defendant, had committed the crime.                    Couser, 163 N.C. App. at

732, 594 S.E.2d at 424 (2004).                 This Court held that evidence

regarding     the     prior    conviction      of     the   victim’s      father    was

properly excluded, as it was insufficient to implicate him in

the sexual assault for which the defendant had been convicted.

Id. at 733, 594 S.E.2d at 424.

      Similarly, we conclude in the present case that the trial

court   did     not    err     in   ruling      that     Mr.    Clarke’s     previous

convictions     were    not    relevant     because      this    evidence    did    not

directly      implicate       him   in   the    sexual      acts    against        Jeff.

Moreover, we believe that such evidence                     would not have been

inconsistent     with     Defendant’s     own    guilt.         Evidence    that    Mr.

Clarke may have also sexually abused Jeff would not necessarily

be   inconsistent       with    Defendant      also    abusing     him.      This    is

particularly so in light of Jeff’s testimony that Defendant (1)

made Jeff and Heather “hump” each other; (2) “humped” Jeff from

behind; (3) touched Jeff’s “butt” with his penis; and (4) made
                                         -7-
Jeff get soap from the bathroom, which Defendant placed on his

penis and then “humped” Jeff again.

       Evidence that Mr. Clarke has prior convictions of sexual

offenses does no more than establish conjecture that (1) Mr.

Clarke committed sexual assaults against Jeff; or (2) Jeff’s

family concocted a fictitious story of sexual abuse concerning

Defendant.     Therefore, the trial court did not err in excluding

this evidence.

       Defendant also contends that the trial court erred in not

allowing Defendant to testify that Jeff “reported” to Defendant

that his “Papa”2 was “doing stuff to him.” Defendant argues that

this is direct evidence against Mr. Clarke that points “directly

to another’s guilt” and was, therefore, admissible.                 However, in

addition to the fact that neither Jeff nor Heather testified

that    Mr.   Clarke   ever    touched    them    inappropriately,    the     fact

that,    according     to     Defendant,       Jeff   may   have   reported     to

Defendant on one occasion that Mr. Clarke was “doing stuff to

him” does not exculpate Defendant; such an allegation, even if

true, could have meant that Jeff was sexually abused by both

Defendant and Mr. Clarke.           Therefore, we cannot say that the




2
  Testimony was offered at trial to the effect that “Papa” was
the name that Jeff used for Mr. Clarke.
                                           -8-
trial       court    committed        reversible      error   in     excluding     this

evidence.

       Defendant also asserts that his rights under the Fifth,

Sixth,       and     Fourteenth        Amendments      to     the     United     States

Constitution were violated by the trial court’s denial of his

request to introduce evidence regarding the third-party guilt of

Mr. Clarke.         Although Defendant asserted at trial a violation of

his Sixth Amendment right to confront witnesses, he has failed

to make a specific argument on this issue in his brief, and – as

such    –    this    argument    is    deemed    abandoned.         See   N.C.R.    App.

P.28(b)(6) (“Issues not presented in a party’s brief, or in

support of which no reason or argument is stated, will be taken

as abandoned.”).

       Defendant       concedes        that     his    remaining      constitutional

arguments were not raised at trial.                   “Constitutional issues not

raised and passed upon at trial will not be considered for the

first time on appeal, not even for plain error.”                               State v.

Jones, 216 N.C. App. 225, 230, 715 S.E.2d 896, 900-01 (2011)

(citation      and    quotations        marks    omitted).          Therefore,     these

issues are not properly before us.

                                       Conclusion
                              -9-
    For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

    NO ERROR.

    Judges ELMORE and McCULLOUGH concur.

    Report per Rule 30(e).
