An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-897
                         NORTH CAROLINA COURT OF APPEALS

                                Filed:      20 May 2014


STATE OF NORTH CAROLINA

      v.                                       Wake County
                                               Nos. 10 CRS 201603-04
JASON RICHARD CHAPIN



      Appeal    by   defendant      from    judgments      entered     11     September

2012 by Judge Paul C. Ridgeway in Wake County Superior Court.

Heard in the Court of Appeals 8 January 2014.


      Roy Cooper, Attorney General, by Anne                           M.     Middleton,
      Assistant Attorney General, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating
      Wiles, for defendant-appellant.


      DAVIS, Judge.


      Jason     Richard      Chapin      (“Defendant”)          appeals      from     his

convictions     of    various      sex   offenses.         On    appeal,      Defendant

contends    that     the   trial    court    (1)   committed         plain    error    by

allowing the introduction of testimony regarding his viewing of

pornography;       (2)     committed     plain     error        by   permitting       the

prosecutor to ask a witness if her testimony was truthful; and
                                      -2-
(3) improperly denied his trial counsel’s request for a modified

jury   instruction.         After   careful   review,     we   conclude     that

Defendant received a fair trial free from prejudicial error.

                             Factual Background

       The State presented evidence at trial tending to establish

the following facts:        Sally1, Defendant’s daughter, was born on 7

November 1996 and was fifteen at the time of trial.                  Defendant

was married to Sally’s mother, Melissa Vestal (“Ms. Vestal”),

for several years before separating when Sally was seven years

old.

       After Sally’s parents divorced, her mother married David

Vestal.    After the divorce, Sally went to live with her mother

and stepfather along with her brother, two stepsiblings, and two

half-siblings.      However, Sally did not enjoy living with her

mother    and   preferred    living   with    Defendant    because    she   and

Defendant would “hang out, go to the gym, [and] go out to eat.”

Conversely, Sally and her mother had a strained relationship.

       Sally began to live with Defendant at the time she was

entering into adolescence.          Over time, Defendant began changing

their parent–child relationship into a sexual relationship.                   On



1
  Pseudonyms are used throughout this opinion to protect the
identities of individuals who were minors at the time of the
incidents described herein.
                                              -3-
occasion,     Defendant      took       her    shopping      at     Victoria’s    Secret.

While   at    the     store,      she    would       pick    out     certain    bras     and

underwear and upon returning home would model them for Defendant

at his request.         Defendant also gave Sally several thongs and

corsets that belonged to one of his girlfriends.                           Sally would

model   those       items   for    Defendant          as    well.      Defendant       would

sometimes tell Sally that they did not have a “normal father-

daughter relationship.”

     A number of other incidents occurred that made Sally feel

increasingly uncomfortable around Defendant.                          On one occasion,

Sally needed to use a printer to print a document for school.

She “went on [Defendant’s] computer because he told [her] to get

on   it.”       When    Sally      went       to     use    the     computer,    she     saw

pornographic images that were “already up,” displaying images of

“girls and guys having sex and girls and girls.”

     On     several    occasions,        Defendant         shaved    Sally’s     legs    and

vaginal     area.      The first such               incident occurred      when Sally,

Defendant,     and     Defendant’s        girlfriend         were    getting     ready    to

leave their residence to attend a wedding.                        Defendant told Sally

that she needed to shave her legs, and Defendant’s girlfriend

tried to show Sally how to do so by letting Sally observe her

shaving her own legs.             However, Defendant became angry because
                                          -4-
they were running late and made Sally put her legs on the toilet

so he could shave them himself.

      The next shaving incident occurred after Defendant and his

girlfriend had separated.               Sally was in the shower and called

out for Defendant to bring her a razor.                 Defendant brought Sally

a   razor,   looked    at   her    legs    and    vaginal     area,    and    stated:

“[W]ow, that’s really hairy. That’s gross.”                   He left the shower

briefly and returned wearing a bathing suit.                        He then entered

the   shower   and    shaved      her    legs    and   vaginal      area.     Similar

incidents occurred during the latter part of Sally’s sixth grade

year.

      On another occasion, Sally returned home from the gym and

was waiting to take a shower before she and Defendant went out

to dinner.       Defendant told Sally to use his shower and that it

would be faster if the two rinsed off together.                             Sally and

Defendant then proceeded to shower together.

      When Sally was in the seventh grade, Defendant began coming

into her room and touching her body in inappropriate places.

Sally described an incident when she was lying down in her bed

but was unable to sleep.            Defendant came into her room to lay

down beside her.        While Defendant was lying next to her, he

rubbed   cocoa    butter    on    her    breasts,      took   off    her    pants   and
                                    -5-
underwear, and proceeded to “hump on top of [her],” rubbing his

penis against her while his pants were off.            Sally pretended to

be asleep during this incident.

      Similar conduct by Defendant occurred “like once a week,

then twice a week and then three times a week,” including two

instances during    which Defendant digitally penetrated Sally’s

vagina.    The sexual activity was not just confined to Sally’s

bedroom; it also occurred in         Defendant’s bedroom and on        the

couch.

      At some point, Sally        confided in a friend from school,

“Lee,” in general terms about Defendant’s sexual abuse of her.

However,   she    never   told    Lee     any   specific   details   about

Defendant’s conduct and asked that Lee not repeat anything she

said to others.

      On 11 December 2009, Sally was confronted at her school by

two   employees   from    the    Child    Protective   Services   Division

(“CPS”) within Wake County Human Services.          They asked Sally “if

anyone had given her a private touch or a bad touch.”             Sally at

first denied any improper conduct by Defendant.             However, she

ultimately admitted that Defendant had sexually abused her and

provided a written statement, detailing the sexual acts he had
                                           -6-
performed on her.         At that point, Sally went to live with her

mother and was not allowed any further contact with Defendant.

    On 19 January 2010, a warrant was issued for Defendant’s

arrest.    Defendant was indicted and charged with seven counts of

indecent liberties with a child; two counts of sexual offense of

a person who is 13, 14, or 15; and two counts of attempted

first-degree     rape.         A   jury    trial       was    held   in    Wake    County

Superior    Court   in    July     2011.         The   jury    found      Defendant    not

guilty on the two counts charging attempted first-degree rape.

However,    because      the   jury     could      not   reach       verdicts     on   the

remaining charges, the court declared a mistrial.                         A second jury

trial took place in Wake County Superior Court on 4 September

2012.

    During trial, Rosalie Bealer (“Ms. Bealer”), a CPS worker

employed    by   Wake    County     Human     Services,        testified     about     her

investigation of Sally’s abuse allegations.                          She stated that

during     her   interview         of   Ms.      Vestal,      Sally’s       mother     had

remembered an incident involving her sister, Rebecca Allen (“Ms.

Allen”),    in   which    Defendant        had     inappropriately         touched     Ms.

Allen while she was asleep.                Ms. Bealer interviewed Ms. Allen

who related an incident that had occurred when Ms. Allen was

seventeen years old and staying at Defendant’s house.                             On this
                                         -7-
occasion, Defendant “took his finger and rubbed [Ms. Allen’s]

vagina.”     She stated to Ms. Bealer that when she “asked him what

are you doing . . . he ran to the bathroom and said I'm sorry.”

    The State’s final witness, Christine Adams (“Ms. Adams”),

testified about her own relationship with Defendant.                   She stated

that on 10 April 2010 she and Defendant became romantically

involved and later became engaged.              However, their relationship

soured, and they eventually separated.             Ms. Adams testified that

“I think he looked at [Sally] like a girlfriend and not, you

know, I think he was obsessed with her like he was with Melissa

or me . . . .”      At the close of her direct examination, she was

asked   by   the   prosecutor       if   her   testimony   was   true    and   she

answered: “Yes.”

    At     the   close   of   the    State’s    evidence,   the    trial    court

dismissed one of the first-degree sexual offense charges.                      The

jury found Defendant guilty of one count of first-degree sexual

offense with a child under 13; two counts of first-degree sexual

offense with a child 13, 14, or 15 years of age; and seven

counts of taking indecent liberties with a child.                       The trial

court sentenced Defendant to a presumptive range term of 192 to

240 months imprisonment for one count of first-degree sexual

offense,     consolidated     the    remaining     offenses,     and    sentenced
                                       -8-
Defendant to a consecutive presumptive range term of 192 to 240

months    imprisonment.       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

I. Testimony Regarding Defendant’s Viewing of Pornography

    Defendant first contends that the trial court erred when it

“repeatedly    allowed      and    failed    to    strike      on    its    own   motion

testimony about [Defendant’s] viewing of pornography when the

conduct he was accused of had nothing to do with the viewing of

pornography.”        At the outset, we note that Defendant did not

object to the admission of this evidence at trial.                         Accordingly,

we review this argument only for plain error.                         N.C.R. App. P.

10(a)(4).     To successfully establish plain error, a “defendant

must demonstrate that a fundamental error occurred at trial” —

meaning that the error was such that it “had a probable impact

on the jury's finding that the defendant was guilty.”                         State v.

Lawrence,     365    N.C.   506,     518,    723    S.E.2d          326,   334    (2012)

(citation and quotation marks omitted).

    “The admissibility of evidence is governed by a threshold

inquiry    into     its   relevance.        In    order   to    be     relevant,      the
                                             -9-
evidence must have a logical tendency to prove any fact that is

of consequence in the case being litigated.”                      State v. Griffin,

136   N.C.   App.    531,   550,       525    S.E.2d    793,     806    (citation    and

quotation    marks    omitted),        appeal       dismissed     and     disc.    review

denied, 351 N.C. 644, 543 S.E.2d 877 (2000).                     It is well settled

that in a criminal case, any evidence which sheds light upon the

alleged crime is admissible.              State v. Streckfuss, 171 N.C. App.

81, 88, 614 S.E.2d 323, 327 (2005).                     Moreover, evidence meets

the test of relevancy if it has any logical tendency, however

slight, to prove a fact in issue.                   State v. Lloyd, 187 N.C. App.

174, 177, 652 S.E.2d 299, 301 (2007), cert. denied, 363 N.C.

586, 683 S.E.2d 214 (2009).

      Here, Sally testified that Defendant told her to use his

computer at a time when pornography was displayed on the screen.

At trial, Defendant offered the testimony of Dr. H.D. Kilpatrick

(“Dr.   Kilpatrick”),       an    expert       in    forensic     psychology.         Dr.

Kilpatrick     reviewed          the     information        pertaining         to    the

allegations    of     sexual     abuse       by     Defendant    using     a   multiple

hypothesis method.          He testified that events such as modeling

lingerie     and     cuddling      were       concerning        because     they    were

potentially grooming activities — used to set the child up for a

sexual relationship.
                                          -10-
       Sally’s    testimony        raised    the    inference       that     Defendant

knowingly let her view pornography on his computer, conduct that

was consistent with the type of grooming activities described by

Dr. Kilpatrick and, therefore, relevant to the charges against

him.     In addition, the evidence was also arguably relevant to

show    Defendant’s      “preparation        and   plan    to   engage      in   sexual

[acts] with her and assist in the preparation and plan by making

[her] aware of such sexual conduct and arousing her.”                         State v.

Williams, 318 N.C. 624, 632, 350 S.E.2d 353, 358 (1986) (holding

that    daughter's      presence     at     an   x-rated    film    at     defendant's

insistence,      coupled    with     his    comments,      showed     his    plan     and

preparation to engage in a sexual relationship with her).

       Defendant relies on State v. Bush, 164 N.C. App. 254, 595

S.E.2d 715 (2004), in support of his argument that “the only

thing    that    the    evidence    of     the   pornography     in    [Defendant’s]

trial accomplished was to put his character in a bad light.”                           In

Bush, the defendant was charged with first-degree sexual assault

with a minor.          At trial, the State offered evidence that after

the     sexual    incident     occurred,           the     defendant        brought     a

pornographic video into the home but did not offer any evidence

that it was viewed by the minor or used to seduce the minor.

Id. at 261, 595 S.E.2d at 719.               This Court held that evidence of
                                        -11-
defendant’s “possession of pornographic materials, without any

evidence that defendant had viewed the pornographic materials

with the victim, or any evidence that defendant had asked the

victim to look at the pornographic materials . . . was not

relevant to proving defendant committed the alleged offenses in

the   instant     case   and   should    not   have   been   admitted   by   the

court.”     Id. at 262, 595 S.E.2d at 720 (citations and quotation

marks omitted and emphasis added).

      The present case is distinguishable because here, unlike in

Bush,     Sally    actually     saw     the    pornography    on   Defendant’s

computer.    Sally testified:

            Q. And do you recall what was happening in
            the
            porn site that you could see?

            A. Just like everything.

            Q. Help us understand what you mean by
            "everything."

            A. Like girls and guys having sex and girls
            and girls. Just stuff like that.

            Q. Did you have to click on like -- did you
            have to navigate to that or when you went to
            the computer it was just there?

            A. It was already up.

      Therefore, because in this case the victim actually saw the

pornography under circumstances permitting the inference that
                                        -12-
Defendant intended for her to view it and become aroused by it,

the admission of this evidence was not error at all — much less

plain error.

II. Admission of Testimony That Witness Was Telling the Truth

    Defendant     next     contends      that   the    trial    court       committed

plain error when it admitted the                following testimony of Ms.

Adams:

           Q. And this testimony that you’re giving
           here today, is it true to the best of your
           knowledge?

           A. Yes.

    Because     Defendant       did    not   object     to   this     testimony    at

trial, he — once again — bears the burden of showing that the

admission of this evidence constituted plain error.

           The question of whether a witness is telling
           the truth is a question of credibility and
           is a matter for the jury alone. Therefore .
           . . it is improper for . . . counsel to ask
           a witness (who has already sworn an oath to
           tell the truth) whether he has in fact
           spoken the truth during his testimony.

State v. Streater, 197 N.C. App. 632, 645, 678 S.E.2d 367, 376,

disc.    rev.   denied,     363       N.C.   661,     687    S.E.2d    293     (2009)

(citations and quotation marks omitted).

    In     Streater,      the     defendant     was     convicted      of    several

offenses stemming from his act of               sexual intercourse with a
                                     -13-
four-year-old girl.         On appeal, the defendant argued that the

court    had    committed   plain   error     by    allowing    the    victim    to

testify as to her own truthfulness.                Id. at 639, 678 S.E.2d at

372.    This Court held that the trial court erred when it allowed

the victim to testify that she “told the truth” in response to

the prosecutor’s questions on direct examination.                     Id. at 645,

678 S.E.2d at 376.          However, we ruled that such error did not

rise to the level of plain error in light of the “physical

evidence of vaginal penetration presented . . . and the victim's

prior consistent statements.”            Id. at 646, 678 S.E.2d at 376-77.

       Here, we conclude that the trial court did err in allowing

the admission of Ms. Adams’ answer to the prosecutor’s question

regarding the truthfulness of her testimony.               However, we do not

believe that this error rose to the level of plain error.                       The

State    presented    evidence      of     Defendant     engaging      in   sexual

activity with Sally for a period of years starting when Sally

was under the age of thirteen.             Sally testified as to multiple

occurrences of sexual abuse inflicted on her by Defendant during

this    time,   including    instances      in   which   he    (1)    rubbed    her

breasts and vagina and then took off her clothes and “started to

hump [her]”; (2) penetrated her vagina with his finger; and (3)

shaved her legs and vaginal area while showering.                     In light of
                              -14-
this overwhelming evidence of guilt, any error in the admission

of this testimony was not so fundamental that it had a probable

impact on the jury's finding that the Defendant was guilty.

Accordingly, he has failed to show plain error.

III. Jury Instructions

    At trial, Defendant’s counsel raised the following concern

as to the proposed jury instruction on “Evidence of Similar Acts

or Crimes” as it related to Ms. Bealer’s testimony regarding the

information Ms. Allen had related to her during her interview:

         That evidence relates to Rebecca Allen, who
         was not a witness to this trial, so I think
         in fairness, your Honor, we either have to
         qualify that evidence as hearsay evidence
         that’s   been   received  or   offer   some
         instruction with regard to my inability to
         cross-examine her.

    This portion of the jury instruction — as ultimately given

by the trial court — stated as follows:

         Evidence has been received tending to show
         that the defendant touched the genital area
         of Rebecca Allen, who was seventeen years
         old at the time, while she was a house guest
         of the defendant and his [w]ife.        This
         evidence   was  received   solely  for   the
         purposes of showing that there existed in
         the mind of the defendant a planned scheme,
         system, or design involving the crimes -
         charged in this case, the absence of
         mistake, the absence of accident.     If you
         believe this evidence you may consider it
         but only for the limited purpose for which
         it was received.    You may not consider it
                                              -15-
             for any other purpose.

             You may find that a witness is interested in
             the outcome of this trial. You may take the
             witness's interest into account in deciding
             whether to believe the witness.      If you
             believe the testimony of the witness in
             whole or part you should treat what you
             believe the same as any other believable
             evidence.

      Defense counsel requested that the trial court add the word

“hearsay” prior to the word “evidence” in this portion of the

instruction.         The        court        declined     to     make    the        requested

modification,       noting       that     the    testimony        at    issue       had     been

received without objection and that it was aware of no basis for

instructing the jury in the manner requested by Defendant.                                      We

agree with the trial court’s reasoning.

      Defendant      was       free     to    object     to     the     alleged          hearsay

evidence at the time it was introduced by the State but failed

to do so.     He likewise failed to request a limiting instruction

at the time the evidence was introduced that would have informed

the   jury   that    this      evidence        could    be     considered         only    for   a

specified     limited          purpose.          “The     admission          of     evidence,

competent for a restricted purpose, will not be held error in

the   absence       of     a    request         by     defendant       for    a      limiting

instruction.”       State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d

728, 735 (1989)
                                -16-
     Defendant has failed to cite any caselaw supporting his

novel argument that the jury should have been instructed that

the evidence was “hearsay evidence” under these circumstances.

Nor has our own independent research disclosed any case in which

North Carolina courts have required a trial court to give such a

modified jury instruction under analogous circumstances.    This

argument is, therefore, overruled.2

                              Conclusion

     For the reasons stated above, we conclude that Defendant

received a fair trial free from prejudicial error.

     NO PREJUDICIAL ERROR.

     Judges STEELMAN and STEPHENS concur.

     Report per Rule 30(e).




2
  Defendant also asserts that his rights under the Confrontation
Clause were violated by the admission of the out-of-court
statement of Ms. Allen.      However, it is well settled that
constitutional issues “not raised and passed upon at trial will
not be considered for the first time on appeal.”       State v.
Garcia, 358 N.C. 382, 415, 597 S.E.2d 724, 748 (2004).
Defendant did not raise his Confrontation Clause argument at
trial.   Therefore, he has failed to preserve this issue for
appellate review. See State v. Flippen, 349 N.C. 264, 276, 506
S.E.2d 702, 709–10 (1998) (holding that defendant's failure to
raise constitutional issue at trial waived appellate review of
that issue, cert. denied, 526 U.S. 1135, 143 L.Ed.2d 1015
(1999).
