An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-758
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     7 January 2014


STATE OF NORTH CAROLINA

      v.                                       Mecklenburg County
                                               No. 12 CRS 981
THADDEUS STEPHEN MACMORAN



      Appeal by defendant from judgment entered 31 January 2013

by   Judge   Forrest     D.    Bridges    in   Mecklenburg     County     Superior

Court.     Heard in the Court of Appeals 20 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Olga Vysotskaya, for the State.

      Ryan McKaig, for defendant-appellant.


      CALABRIA, Judge.


      Thaddeus     Stephen     MacMoran     (“defendant”)      appeals     from    a

judgment     entered    upon    jury     verdicts    finding     him    guilty    of

statutory     sexual    offense    against     a    person   who   is   thirteen,

fourteen, or fifteen years old by a defendant who is at least

six years older than the victim (“statutory sexual offense”).

We find no error.

                                  I. Background
                                            -2-
       Defendant was employed as a youth pastor at a church in

Charlotte, North Carolina, where he met thirteen-year-old E.H.

(“Eric”)1 and his family.                Defendant became friends with the

family.       Eric’s mother regarded defendant as part of the family,

and trusted him with her children.

       Defendant paid particular attention to Eric, taking him on

outings       and    playing    video       games    and     basketball       with     him.

Sometimes defendant slept on the floor of Eric’s bedroom when he

stayed overnight with Eric’s family.                  During the summer of 2010,

when    Eric        was   fourteen     years      old,     defendant      spent       three

consecutive         nights   with     the    family.         On    the   first       night,

defendant      touched       Eric’s    penis      with     his    hand   as    Eric     was

attempting to fall asleep.              The following night, defendant again

touched Eric’s genitals, stroking his penis.                        The third night,

defendant briefly performed fellatio on Eric and requested Eric

perform fellatio on him.              When Eric refused, defendant “got mad,

disappointed.”            The last time defendant had physical contact

with Eric was in November 2011.

       In addition to physical contact, defendant also had sexual

conversations and exchanged explicit text messages with Eric.

In     late    November      2011,     Eric’s       mother       discovered      sexually

1
  We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
                                                 -3-
explicit text messages from defendant on Eric’s cell phone and

confronted her son about the nature of the messages.                              Eric told

his   mother      about    defendant’s            behavior       toward    him,    and    she

subsequently reported defendant’s behavior to law enforcement.

      Defendant was arrested and indicted for statutory sexual

offense, committing a crime against nature, and four counts of

indecent    liberties          with    a    child      (“indecent    liberties”).           At

trial, Eric testified that defendant had touched his genitals on

approximately ten to fifteen occasions.                            Eric also testified

that he had not told anyone, not even his parents, about the

occurrences       because        he        was    scared     and    embarrassed          about

defendant’s sexual advances toward him.

      On   31    January       2013,       the    jury   returned       verdicts    finding

defendant   guilty        of    all    offenses.           The   jury     also    found    the

aggravating factor that defendant took advantage of a position

of trust or confidence to commit the offenses.                            The trial court

arrested judgment for the indecent liberties and crime against

nature offenses, and sentenced defendant to a minimum of 222

months and a maximum of 276 months in the custody of the North

Carolina Division of Adult Correction for the statutory sexual

offense.        The trial court also ordered defendant to enroll in
                                          -4-
satellite-based monitoring and register as a sex offender upon

his release from custody.             Defendant appeals.

                                      II. Mistrial

    Defendant argues that the trial court should have declared

a mistrial ex mero motu after the district attorney asked Eric’s

mother her opinion regarding Eric’s honesty.                     He contends that

her answer amounted to an impermissible bolstering of Eric’s

testimony.         We find no error.

        Generally,         the    credibility    of    a    witness    may    only    be

supported after it has been attacked.                  N.C. Gen. Stat. § 8C-1,

Rule 608(a) (2011).               However, “any error in admitting evidence

in violation of Rule 608 does not require a new trial unless

there    is    a    reasonable       possibility      that,    had    the    error    in

question not been committed, a different result would have been

reached at trial.”               State v. Moore, 103 N.C. App. 87, 99, 404

S.E.2d     695,      702    (1991)     (citations     and     internal      quotations

omitted).      “Not every disruptive event which occurs during trial

automatically requires the court to declare a mistrial.”                         State

v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000).

    Our       Courts       have    previously    considered     the     effect   of    a

mother’s      testimony       regarding    her     children’s        truthfulness     in

cases concerning child sexual abuse.                   Because “most jurors are
                                      -5-
likely   to   assume   that   a   mother     will   believe   accusations   of

sexual abuse made by her own children, we cannot conclude that

the challenged portion of . . . testimony had any significant

impact on the jury’s decision to convict Defendant.”                State v.

Dew, ___ N.C. App. ___, ___, 738 S.E.2d 215, 219 (2013) (citing

State v. Ramey, 318 N.C. 457, 466, 349 S.E.2d 566, 572 (1986)

(holding “[i]t is unlikely that the jury gave great weight to

the fact that a mother believed that her son was truthful.”)).

In addition, a trial court’s prompt corrective action can cure

the error caused by improper testimony.             See State v. King, 343

N.C. 29, 44-45, 468 S.E.2d 232, 242 (1996) (trial court’s action

was sufficient to cure any prejudice when it sustained objection

to witness’s testimony, allowed motion to strike, and instructed

the jury not to consider the witness’s response); see State v.

Boyd, 321 N.C. 574, 578-79, 364 S.E.2d 118, 120-21 (1988) (trial

court took prompt and sufficient corrective action by sustaining

defendant’s     objection,        allowing     motion    to    strike,      and

instructing the jury not to consider witness’s response).

    In    the    instant      case,   after     Eric’s    mother   testified

regarding Eric’s reaction to her discovery of defendant’s text

messages, the prosecutor asked whether she “[had] always known

[Eric] to be an honest kid[.]”              Defendant immediately objected
                                        -6-
and   made    a    motion    to   strike.     Although       defendant   failed   to

request a mistrial and did not request a curative instruction,

the trial court provided detailed instructions to the jury at

the onset of trial regarding, inter alia, the significance of

the   court       granting    defendant’s     motion    to    strike.     In   those

instructions the trial court indicated that a motion to strike

              is actually a motion to strike that answer
              from your memory. . . . [S]o if I grant a
              motion to strike . . . that is my signal to
              you simply disregard what you have just
              heard, the last answer.     In other words,
              when you go back into the jury room to
              deliberate and you consider that collection
              of evidence that has been presented, there
              should not be included in that collection of
              evidence anything on which I granted a
              motion to strike. And if your fellow jurors
              start talking about an answer that was given
              but was stricken, please remember that,
              point that out to your fellow jurors and
              say, wait, we should not consider that,
              because that’s not part of the competent
              evidence in the case.

The   trial        court     properly   sustained       defendant’s      objection,

granted defendant’s motion to strike, and instructed the jury on

the meaning of a motion to strike.                     “Jurors are presumed to

follow a trial judge’s instructions.” State v. Phillips, 171

N.C. App. 622, 629, 615 S.E.2d 382, 386 (2005) (quoting State v.

Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)). Therefore,

since defendant failed to refute this presumption on appeal, and
                                     -7-
the trial judge instructed the jury that stricken testimony was

not to be considered as competent evidence in the case, the

trial court did not err by not declaring a mistrial.

      Defendant argues in the alternative that his trial counsel

committed ineffective assistance of counsel by failing to move

for mistrial.      To prevail on such a claim, defendant must show

that his trial counsel’s performance was “deficient,” and that

“the deficient performance prejudiced the defense.”                    Strickland

v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).

Although defendant claims his trial counsel’s failure to move

for   mistrial    was    prejudicial,     he   fails   to   explain     how   this

performance was prejudicial enough for the court to declare a

mistrial.   Defendant’s claim is without merit.

                             III. Age Testimony

      Defendant argues that the trial court committed plain error

by allowing Eric and his mother to testify regarding defendant’s

age, and erred in denying defendant’s motion to dismiss the

charges against him.       We disagree.

      Defendant    did     not   object    to    Eric’s     or   his     mother’s

testimonies about defendant’s age.              Therefore, that testimony

may only be reviewed for plain error.              See State v. Odom, 307

N.C. 655, 660, 300 S.E.2d 375, 378 (1983).              “Because plain error
                                          -8-
is to be applied cautiously and only in the exceptional case,

the   error    will     often    be     one    that    seriously      affect[s]          the

fairness,      integrity         or     public        reputation       of        judicial

proceedings.”      State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d

326, 334 (2012) (citations omitted).

      Upon defendant’s motion to dismiss, “the trial court must

determine     whether    there    is     substantial       evidence       (1)    of     each

essential     element    of     the     offense      charged   and    (2)       that    the

defendant     is   the    perpetrator          of    the   offense.”            State     v.

Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citations

omitted).     “Substantial evidence is such relevant evidence as a

reasonable     mind      might        accept    as     adequate      to     support       a

conclusion.”       State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).

      To prove that a defendant is guilty of a statutory sexual

offense, the State must show, inter alia, that a person engaged

in a sexual act with a victim who is thirteen, fourteen, or

fifteen years old, and that the defendant is at least six years

older than the victim.            N.C. Gen. Stat. § 14-27.7A(a) (2010).

The State is not required to offer the birth certificates of

defendant and victim to establish the ages of the parties, but

testimony is sufficient.              State v. Cortes-Serrano, 195 N.C. App.
                                       -9-
644, 652-53, 673 S.E.2d 756, 761-62 (2009).                   However, a witness

may not testify to a matter unless there is evidence sufficient

to   support   a   finding    that    he    has    personal   knowledge   of   the

matter.   N.C. Gen. Stat. § 8C-1, Rule 602 (2011).

      As an initial matter, there is no dispute that defendant

was the perpetrator.         Defendant’s dispute focuses on the State’s

failure to provide substantial evidence that defendant was at

least six years older than Eric.                  Defendant contends that the

testimony offered at trial was foundationless.

      This Court has held that the jury may rely on their in-

court     observations,        supplemented          by   other     direct       or

circumstantial      evidence,    in        determining    a    defendant’s     age.

State v. Ackerman, 144 N.C. App. 452, 461-62, 551 S.E.2d 139,

145-46 (2001).      In addition, “[t]he credibility of the witnesses

and the weight to be given their testimony is exclusively a

matter for the jury.”          State v. Scott, 323 N.C. 350, 353, 372

S.E.2d 572, 575 (1988) (citation omitted).

      In the instant case, the evidence showed that defendant was

a gainfully employed adult when he first came into contact with

Eric’s family, and was on friendly terms with the family for

about a year before he began seeing them socially outside the

church environment.       At the time of trial in January 2013, Eric
                                               -10-
was sixteen years old.                   Both Eric and his mother testified,

without objection, that defendant was approximately twenty-six

or twenty-seven years old at the time of trial.                                 Both Eric and

his   mother       also    testified            from        their    personal          knowledge

regarding      defendant’s         age,     based       upon       their       close    friendly

relationship       for    over       a   year.     The       evidence      showed       the    age

difference between defendant and Eric to be approximately ten

years, which satisfies the requirements of N.C. Gen. Stat. § 14-

27.7A(a).          Since       the       jurors’       in-court          observations         were

supplemented by circumstantial evidence of the approximate age

difference      between        defendant        and     Eric,       the    State       presented

substantial      evidence          sufficient         to     support       a    finding       that

defendant was at least six years older than Eric at the time of

the   offenses.           It    was      for     the       jury     to    determine       “[t]he

credibility of the witnesses and the weight to be given their

testimony[.]”       Scott, 323 N.C. at 353, 372 S.E.2d at 575.

                                      IV. Conclusion

      The trial court took immediate action to cure any error

regarding    the    disputed         testimony         of    Eric’s       mother.        Neither

defense counsel’s          failure to move for                    nor the trial court’s

failure   to    declare        a     mistrial      ex       mero    motu       prejudiced      the

defendant.         Defendant         also      fails        to     demonstrate         that    the
                              -11-
testimony regarding his age constitutes plain error.      Because

jurors are assumed to follow the trial court’s instructions, and

the jury is the ultimate judge of the credibility and weight of

witness testimony, defendant received a fair trial, free from

error. Id.; Phillips, 171 N.C. App. at 629, 615 S.E.2d at 386.



    No error.

    Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.

    Report per Rule 30(e).
