An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-289
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA


      v.                                      Union County
                                              No. 12 CRS 52806
DANIEL HERNANDEZ RIQUELME



      Appeal by defendant from judgment entered 18 September 2013

by Judge Jeffrey P. Hunt in Union County Superior Court.                      Heard

in the Court of Appeals 9 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Jennifer T. Harrod, for the State.

      James W. Carter for defendant-appellant.


      BRYANT, Judge.


      Where the trial court did not err in admitting the video of

the witness’ interview with police as corroborating evidence and

where the trial court did not err in denying defendant’s motion

to dismiss the charge of taking indecent liberties with a child,

we hold no error.
                                        -2-
       On 4 September 2012, a Union County Grand Jury indicted

defendant    on   one    count    of   taking   indecent   liberties     with   a

minor.    The matter came to trial on 16 September 2013 before a

Union    County   jury,     the    Honorable     Jeffery    P.   Hunt,    Judge

presiding.    The evidence presented at trial tended to show that

in May 2012, Carl,1 a nine-year-old boy who lived in the same

apartment complex as defendant, went to defendant’s apartment to

ask for money.          Carl wanted to buy his mother a Mother’s Day

gift.    Carl had been to defendant’s residence before to watch a

movie, and defendant had previously purchased toys for Carl.

Defendant said he would give Carl money and invited Carl into

the residence.      Defendant instructed Carl to go to defendant’s

bed.     While Carl lay on the bed, defendant instructed Carl to

close his eyes.          Then defendant kissed Carl on his mouth and

neck.     Carl testified that this went on for ten to fifteen

minutes before Carl made up an excuse to leave.

       Later, when Carl’s younger brother told his mother that he

had been in defendant’s apartment, Carl told his mother what had

happened while Carl was inside defendant’s apartment.                    Carl’s

mother immediately called the police.




1
  A pseudonym has been used to                protect the identity of the
juvenile.
                                          -3-
      After     the      presentation        of       evidence   and    arguments    of

counsel,    the    jury     found    defendant          guilty   of   taking    indecent

liberties with a child.               The trial court entered judgment in

accordance with the jury verdict and sentenced defendant to an

active term of 16 to 29 months.               Defendant appeals.

                      _______________________________________

      On appeal, defendant raises the following issues, whether

the trial court:           (I) committed plain error by admitting the

video of Carl’s interview with police; and (II) erred in denying

defendant’s       motion    to     dismiss    the       charge   of   taking   indecent

liberties with a child.

                                                  I

      Defendant argues that the trial court committed plain error

by   admitting     the     video    of   Detective        Garcia’s     interview    with

Carl.      Specifically,         defendant        contends   that     statements    made

during Carl’s interview with Detective Garcia contradicted his

trial testimony and went beyond the scope of his testimony at

trial,   introducing        new     facts.         On    these   grounds,      defendant

contends that he is entitled to a new trial.                     We disagree.

                   For error to constitute plain error, a
              defendant    must    demonstrate    that     a
              fundamental error occurred at trial. To show
              that an error was fundamental, a defendant
              must    establish    prejudice—that,     after
              examination of the entire record, the error
                                        -4-
              had a probable impact on the jury's finding
              that the defendant was guilty.      Moreover,
              because plain error is to be applied
              cautiously and only in the exceptional case,
              the error will often be one that seriously
              affects 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 and quotations omitted).

       “A witness’s prior consistent statements may be admitted to

corroborate      the     witness's     courtroom      testimony.”            State     v.

Harrison,      328     N.C.   678,    681,    403    S.E.2d      301,    303     (1991)

(citation      and     quotations     omitted).        “Corroboration          is     the

process of persuading the trier of the facts that a witness is

credible.       We have defined ‘corroborate’ as to strengthen; to

add    weight     or    credibility     to    a     thing   by     additional        and

confirming acts or evidence.”                State v. Ramey, 318 N.C. 457,

468,   349    S.E.2d     566,   573    (1986)       (citations     and       quotations

omitted).       “In order to be corroborative and therefore properly

admissible, the prior statement of the witness need not merely

relate to specific facts brought out in the witness's testimony

at trial, so long as the prior statement in fact tends to add

weight   or     credibility     to   such    testimony.”         Id.    at    469,   349

S.E.2d   at     573    (citations     omitted).        “[T]he     witness's         prior

contradictory statements may not be admitted under the guise of
                                            -5-
corroborating his testimony.”                    State v. McCree, 160 N.C. App.

200,    207,     584       S.E.2d    861,    866       (2003)    (citation     omitted).

However, “[i]f the previous statements offered in corroboration

are    generally       consistent     with       the   witness'     testimony,     slight

variations       between       them     will       not     render      the     statements

inadmissible. Such variations affect only the credibility of the

evidence which is always for the jury.”                         Harrison, 328 N.C. at

681—82, 403 S.E.2d at 304 (citations and quotations omitted).

       Defendant contends that statements made in Carl’s video-

recorded interview with Detective Garcia contradicted and “went

far    beyond”      Carl’s    trial    testimony.          We     note    Carl’s   video-

recorded interview was accepted into evidence and played for the

jury during Detective Garcia’s testimony, prior to the time Carl

testified      as      a   witness.         In     the    video,    Detective      Garcia

questions Carl about the sequence of events which led Carl into

defendant’s apartment.              Defendant points out that Carl initially

states that he went to defendant’s residence and “[h]e dragged

me into—.”          “What did he say?” “That he was going to give me

money.”      Later in the interview, Detective Garcia again asked

Carl    to   explain        what    happened      when    he    went     to   defendant’s

apartment.

             Detective Garcia:  Explain  to  me   what
                  happened when you went to his house,
                                                  -6-
                     what happened?

             . . .

                     When you were outside and he told you
                     he was going to give you twenty
                     dollars.   How did it happen when you
                     went inside?

             Carl:     First off, I went to his house, I
                  told you. About if I could give him a
                  smoothie [made with strawberries] and
                  he really, really wanted me to come in
                  there.   Then he told me he would give
                  me twenty dollars.

             Detective Garcia:                    And then what happened?

             Carl:            Then he pushed me to his bed.

During the trial, Carl testified that he went to defendant’s

apartment and asked defendant “if I can borrow like some money.

And then he said sure. And then he told me then to get -- like

go    into   the    bed      .     .    .    .”      The   difference     between   Carl’s

testimony at trial, that defendant told him to “go in to the

bed” and his video statement that defendant “pushed [Carl] to

his    bed,”    is       a    slight          variation     that    affects    only    the

credibility        and       not       the    admissibility        of   the   video-taped

statements.        Carl’s statements made during his interview with

Detective      Garcia         are       not       inconsistent     with    Carl’s     trial

testimony.     Therefore, as to this point, defendant’s argument is

overruled.
                                          -7-
      Defendant goes on to argue that the jury found defendant

guilty of taking indecent liberties with a child in part based

on the allegation that “[defendant] told the child to stick out

his   tongue”     so   that     defendant     could   kiss      him   in    the   mouth.

Defendant       contends      there     was   no   substantive        evidence      that

defendant   kissed       Carl    on   the     mouth   and    that     the    only   such

evidence    came       from    Carl’s     interview      with    Detective        Garcia

admitted for purposes of corroboration.                  However, we note Carl’s

testimony during direct examination at trial.

            A      So I went to his house -- I mean
                   apartment. And he said sure. Then he
                   told me to go to the bed and was
                   kissing me. Oh, yeah, then he told me
                   to stick my tongue out.

            . . .

            Q      Where on your body did he kiss you?

            A      My mouth, my neck a little bit, and he
                   touched me like kind of my arms --
                   well, maybe my arms.

            . . .

            Q      When this was            happening,      [Carl],    how
                   did you feel?

            A      Well, disgusted.

      This testimony supports the charge that defendant had Carl

stick out his tongue so defendant could kiss Carl in the mouth

and that defendant did kiss Carl in the mouth.                        The challenged
                                             -8-
video-recorded statements made by Carl during the course of his

interview with Detective Garcia did not go beyond the scope of

Carl’s     trial        testimony          and      was        properly     admitted      as

corroborative evidence.              Therefore, the trial court did not err

in   admitting        the    video   recording          as     corroborating     evidence.

Accordingly, defendant’s argument is overruled.

                                                   II

       Next,    defendant       argues       that       the     trial    court   erred    in

denying    defendant’s         motion       to   dismiss        the     charge   of   taking

indecent       liberties      with     a    child.             Specifically,     defendant

contends there was no evidence defendant willfully committed or

attempted to take any immoral, improper, or indecent liberties

with   Carl     for    the    purpose       of   arousing        or     gratifying    sexual

desire nor did he willfully commit or attempt to commit any lewd

or lascivious act upon Carl.                We disagree.

       “We review denial of a motion to dismiss criminal charges

de novo, to determine whether there is substantial evidence (1)

of each essential element of the offense charged, or of a lesser

offense    included         therein,       and   (2)      of    defendant's      being   the

perpetrator of such offense.”                    State v. Mobley, 206 N.C. App.

285, 291, 696 S.E.2d 862, 866 (2010) (citation and quotations

omitted).       “[T]he trial court must analyze the evidence in the
                                        -9-
light most favorable to the State and give the State the benefit

of every reasonable inference from the evidence. . . .                           The

trial    court   does    not    weigh    the    evidence,    consider      evidence

unfavorable      to     the     State,     or     determine         any    witness'

credibility.”         State    v.   Trogdon,    216   N.C.   App.    15,   25,   715

S.E.2d 635, 641 (2011) (citation and quotations omitted).

    Pursuant to North Carolina General Statutes, section 14-

202.1,

            [a] person is guilty of taking indecent
            liberties with children if, being 16 years
            of age or more and at least five years older
            than the child in question, he either:

                  (1) Willfully takes or attempts to take
                  any immoral, improper, or indecent
                  liberties with any child of either sex
                  under the age of 16 years for the
                  purpose   of  arousing   or  gratifying
                  sexual desire; or

                  (2) Willfully commits or attempts to
                  commit any lewd or lascivious act upon
                  or with the body or any part or member
                  of the body of any child of either sex
                  under the age of 16 years.

N.C. Gen. Stat. § 14-202.1(a) (2013).

    Defendant testified in his own defense and admitted that at

the time of trial he was forty-one years old.                   Carl testified

that at the time of trial he was ten years old.                      Carl further

testified that he went to defendant’s apartment to ask for some
                                            -10-
money    to    buy    a   Mother’s    Day    gift.      Once      inside     defendant’s

apartment,         Carl   testified    that    defendant       told    him      to    go   to

defendant’s bed and there, started kissing him.                        Carl testified

that he was lying on the bed and defendant was on top of him.

               Q      Where on your body did he kiss you?

               A      My mouth, my neck a little bit, and he
                      touched me like kind of my arms --
                      well, maybe my arms.

Carl testified that this encounter went on for ten to fifteen

minutes.

    As there was substantial evidence that defendant was more

than five years older than Carl—who was less than sixteen years

old—and       that    defendant      took    immoral,      improper,       or     indecent

liberties with Carl for the purpose of arousing or gratifying

sexual     desire,2       the    trial      court    did    not     err      in      denying

defendant’s        motion   to    dismiss     the    charge    of     taking      indecent




2
  In State v. Hammett, this Court held that “[the] defendant's
action in ‘french kissing’ [his thirteen-year-old daughter]
constituted a lewd or lascivious act within the meaning of G.S.
§ 14–202.1(a)(2).” 182 N.C. App. 316, 322, 642 S.E.2d 454, 458
(2007). See also State v. Banks, 322 N.C. 753, 767, 370 S.E.2d
398, 407 (1988) (holding that where defendant—a thirty-year-old
man—kissed two eight-year-old girls, “putting his tongue in
their mouths, ears and noses,” the trial court’s instruction
that such acts were “immoral, improper, or indecent” within the
meaning of subsection (1) of N.C. Gen. Stat. ' 14-202.1 and
“lewd or lascivious” within the meaning of subsection (2) was
proper).
                               -11-
liberties with a child.    See Mobley, 206 N.C. App. at 291, 696

S.E.2d at 866.   Accordingly, this argument is overruled.

    No error.

    Chief Judge McGEE and Judge STROUD concur.

    Report per Rule 30(e).
