                             NO. COA13-1128

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 3 June 2014


STATE OF NORTH CAROLINA

    v.                                 Catawba County
                                       Nos. 11CRS004534-36
MAX TRACY EARLS,                            11CRS053827-30
     Defendant.


    Appeal by defendant from Judgments entered on or about 18

April 2013 by Judge Richard D. Boner in Superior Court, Catawba

County.   Heard in the Court of Appeals 6 March 2014.


    Attorney General Roy A. Cooper III, by Special               Deputy
    Attorney General Amar Majmundar, for the State.

    M. Alexander Charns, for defendant-appellant.


    STROUD, Judge.


    Max   Earls    (“defendant”)   appeals   from   judgments   entered

after a Catawba County jury found him guilty of three counts of

taking indecent liberties with a child, two counts of incest,

one count of statutory rape, and one count of rape of a child by

an adult. We conclude that there was no error at defendant’s

trial or sentencing.

                            I.     Background
                                     -2-
       On or about 11 July 2011, defendant was indicted on three

counts of taking indecent liberties with a child, two counts of

incest, one count of statutory rape, and one count of rape of a

child by an adult.      Defendant pled not guilty and was tried by

jurythe week of 15 April 2013.

       At trial, the State’s evidence tended to show that in mid-

to-late   2010,   defendant    was   living   with   his   wife   and   three

daughters, Kate, Ellen, and Carol,1 in Catawba County, NC. At the

time, Kate was 13, Ellen was 11, and Carol was approximately 2.

Kate and Ellen     both testified at trial.          Kate testified that

defendant had sexually abused her by forcing her to engage in

both    vaginal   and   anal    intercourse.     Ellen     testified     that

defendant made her take her clothes off and got into bed naked

with her. She could not say aloud what he did to her after that,

but while she was on the witness stand the prosecutor had her

write down what happened. Ellen wrote that defendant had put his

penis in her vagina. After the State rested, defendant presented

his own evidence and testified on his own behalf. He denied that

he ever touched his daughters inappropriately and claimed that

they made up the story.




1
  To protect the identities of the juveniles and for ease of
reading we will refer to them by pseudonym.
                                        -3-
     The jury found defendant guilty of all charges. The trial

court   then   consolidated       the     charges      into   two   judgments   and

sentenced defendant to 300 to 369 months imprisonment with a

consecutive     sentence     of     240     to    297     months    imprisonment.

Defendant filed timely written notice of appeal on 22 April

2013.

                             II.     Guilt Phase

     Defendant argues that the trial court erred in four ways

during the guilt phase of his trial:                   (1) that the trial court

erred in allowing the prosecution to ask the 14-year-old Ellen

leading questions, which violated his rights under the Sixth and

Fourteenth     Amendments;    (2)       that     the    trial   court   erred    by

allowing the prosecutor to read Ellen’s written statement to the

jury; (3) that the prosecutor improperly vouched for Ellen’s

credibility by reading her statement to the jury; and (4) that

Ellen was not competent to testify. We conclude that all of

defendant’s arguments are meritless and that several of them

have not been properly preserved.

A.   Leading Questions

     Defendant did object to one of the prosecutor’s leading

questions of Ellen on the basis of leading.                   We review the trial

court’s decision to overrule              this   objection for an abuse of
                              -4-
discretion. See State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d

55, 59 (1986) (“Rulings by the trial judge on the use of leading

questions are discretionary and reversible only for an abuse of

discretion.”).

    The prosecutor and Ellen had the following exchange leading

to defendant’s objection:

         [Prosecutor]: I’m going to show you what’s
         marked as State’s Exhibit 6. I’m going to
         ask you, when I was questioning you earlier
         and I asked you to write down what your
         father did to you, is this your writing?

         [Ellen]: Yes.

         [Prosecutor]: Okay. And you wrote that?

         [Ellen]: Yes.

         [Prosecutor]: And you wrote that while you
         were sitting on the witness stand?

         [Ellen]: Yes.

         [Prosecutor]: And this happened to you, is
         that true?

         [Ellen]: Yes.

         [Prosecutor]: And your father did this to
         you, is that true?

         [Defense Counsel]: Objection to the leading.

         THE COURT: The objection is overruled.

         [Prosecutor]: Is that true?

         [Ellen]: Yes.
                                       -5-


    This question was the only one to which defendant objected.

Any other objection to the prosecutor’s questions has not been

preserved.    N.C.R.      App.   P.   10(a)(1).    The    control    of    witness

examination    is   discretionary,      Riddick,    315    N.C.     at    756,   340

S.E.2d at 59, and not reviewable for plain error, see State v.

Norton, 213 N.C. App. 75, 81, 712 S.E.2d 387, 391 (2011) (noting

that “discretionary decisions of the trial court are not subject

to plain error review.”).

           The general rule is that leading questions
           should be asked only on cross-examination.
           However,   a   trial judge  must  exercise
           reasonable   control  over  the  mode   of
           interrogating witnesses. Leading questions
           should be permitted on direct examination
           when necessary to develop the witness’s
           testimony.

Riddick, 315 N.C. at 755, 340 S.E.2d at 59 (citations, quotation

marks, and ellipses omitted).

    Here, Ellen testified in response to a non-leading question

that something bad happened between her and defendant.                           She

testified that she was watching TV in her sister’s basement

bedroom when defendant came in and sat down on the bed next to

her. She stated that he told her to undress and took his clothes

off. The prosecutor asked what happened next, but Ellen did not

respond.     She    had    already    been   crying       at   several      points
                                                -6-
throughout her testimony and it is clear from the transcript

that    she        refused    to     look      at   anyone     in    the    eye    or    answer

questions about what happened after her father got into the bed

with her naked.

       In response, the prosecutor began asking her more leading

questions, encouraging her to tell the truth and to say what

happened. She responded to various questions about the people

with whom she had discussed what had happened, but would not say

what defendant did to her.                  Out of the presence of the jury, the

prosecutor attempted to refresh Ellen’s recollection by having

her    read    a     prior    written       statement        she    had    made,   but   Ellen

refused       to    look     at    it.   The    trial       court   instructed      Ellen   to

answer    both         the        prosecutor’s        and     the    defense       attorney’s

questions.          The court also warned the prosecutor that if Ellen

refused to answer questions on cross-examination, he would have

to strike her testimony. When the jury returned, she continued

not to respond to questions about what defendant did to her.

While Ellen was still on the witness stand, the prosecutor had

Ellen write down what defendant did to her. They then had the

exchange discussed above.

               The trial judge in ruling on leading
               questions is aided by certain guidelines
               which have evolved over the years to the
               effect that counsel should be allowed to
                                      -7-
              lead his witness on direct examination when
              the witness is: (1) hostile or unwilling to
              testify, (2) has difficulty in understanding
              the question because of immaturity, age,
              infirmity or ignorance or where (3) the
              inquiry is into a subject of delicate nature
              such as sexual matters, (4) the witness is
              called to contradict the testimony of prior
              witnesses, (5) the examiner seeks to aid the
              witness’ recollection or refresh his memory
              when the witness has exhausted his memory
              without   stating   the  particular   matters
              required, (6) the questions are asked for
              securing    preliminary    or    introductory
              testimony,    (7)   the   examiner    directs
              attention to the subject matter at hand
              without suggesting answers and (8) the mode
              of questioning is best calculated to elicit
              the truth.

State   v.    Greene,   285   N.C.   482,    492-93,   206    S.E.2d   229,   236

(1974).

    Here, the prosecutor was attempting to ask a 14-year-old

witness      explicit   questions    about   her   father’s    sexual   conduct

toward her. She was clearly very reluctant to testify about it

in detail and out loud. The prosecutor repeatedly urged Ellen to

tell the truth, regardless of what her answer would be.                       The

prosecutor attempted to refresh her recollection with her prior

statements, but she still refused to specify what defendant did

to her. Leading questions were clearly necessary here to develop

the witness’s testimony. Given the facts of this case, we cannot

say that the trial court abused its discretion in permitting the
                                            -8-
prosecutor to ask Ellen leading questions. See Riddick, 315 N.C.

at 756, 340 S.E.2d at 59.

       Defendant also makes a brief argument that the prosecutor

violated his right to confront his accuser under the Sixth and

Fourteenth      Amendments       by   asking      Ellen    leading      questions.    He

cites no case holding that a trial court’s decision to allow

leading questions on direct examination implicates a criminal

defendant’s confrontation rights. Ellen testified in open court

and defendant had a full and fair opportunity to cross-examine

her, which he did. This argument is meritless.

B.     Reading to the Jury

       Defendant next argues that it was error for the trial court

to    permit   the       prosecutor   to     read      Ellen’s      in-court,   written

statement to the jury. The challenged statement was a one-line

written statement about that which Ellen could not bring herself

to say aloud: that defendant placed his penis in her vagina. It

was    made    in    court,     before   the      jury,    and      defendant   had   an

opportunity         to    cross-examine      her       about     the   statement,     an

opportunity he took advantage of. Other than a single reference—

without a cite—to that which “Confrontation requires,” he makes

no     argument          that   any   rule        of     evidence,      statute,      or

constitutional           provision    was     violated         by    this   manner    of
                                         -9-
presentation. Therefore, we have no legal basis upon which to

review this alleged error. See N.C.R. App. P. 28(b)(6). It is

not the role of this Court to craft defendant’s arguments for

him. Viar v. North Carolina Dept. of Transp., 359 N.C. 400, 402,

610 S.E.2d 360, 361 (2005) (stating that “[i]t is not the role

of the appellate courts, . . . to create an appeal for an

appellant”).

C.     Vouching for Credibility of the Witness

       Defendant further argues that the prosecutor vouched for

Ellen’s credibility by reading her in-court, written statement

to the jury. The prosecutor never made any statement directly

about Ellen’s credibility. Defendant simply contends that the

act of reading the statement itself was equivalent to vouching

for her credibility. He did not object on this basis below and

does not specifically argue on appeal that this alleged error

would    constitute      plain       error.     Therefore,      it    has   not   been

preserved for our review. See State v. Lawrence, 365 N.C. 506,

516,    723   S.E.2d    326,   333     (2012)    (“To    have    an    alleged    error

reviewed      under    the   plain    error     standard,      the    defendant    must

‘specifically     and    distinctly’      contend       that    the    alleged    error

constitutes plain error.”).

D.     Ellen’s Competency
                                    -10-
    Defendant    does     argue     that    the    admission    of      Ellen’s

testimony constituted plain error because she was incompetent to

testify. As defendant notes, “the competency of a witness is a

matter which rests in the sound discretion of the trial judge in

the light of his examination and observation of the particular

witness.” State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426

(1987)   (citation,     quotation     marks,      and    emphasis     omitted).

Defendant never raised the issue of Ellen’s competency below and

“discretionary decisions of the trial court are not subject to

plain error review.” Norton, 213 N.C. App. at 81, 712 S.E.2d at

391. Therefore, this alleged error has not been preserved for

our review.

              III. Ineffective Assistance of Counsel

    Defendant    next    argues     that   his    trial    counsel     rendered

ineffective   assistance    of    counsel    by    not    objecting    to   the

introduction of a videotaped interview of Ellen.

          To   successfully   assert  an   ineffective
          assistance of counsel claim, defendant must
          satisfy a two-prong test. First, he must
          show that counsel’s performance fell below
          an objective standard of reasonableness.
          Second, once defendant satisfies the first
          prong, he must show that the error committed
          was so serious that a reasonable probability
          exists that the trial result would have been
          different absent the error.
                                        -11-
State v. Ballance, ___ N.C. App. ___, ___, 720 S.E.2d 856, 867

(2012) (citation and quotation marks omitted). Defendant cannot

show    that    his    trial     counsel’s     performance       fell    below    an

objective      standard   of     reasonableness     or    that   the    failure    to

object prejudiced him if the evidence to which he failed to

object was admissible.

       Here, the out-of-court videotaped statement was introduced

to corroborate Ellen’s testimony as a prior consistent statement

and the trial court gave a limiting instruction to that effect.

“A prior consistent statement may be admissible as non-hearsay

even when it contains new or additional information when such

information      tends    to    strengthen     or   add    credibility      to    the

testimony which it corroborates. Out-of-court statements offered

to corroborate a child’s testimony regarding sexual abuse have

been held to be non-hearsay.” State v. Treadway, 208 N.C. App.

286, 290, 702 S.E.2d 335, 341 (2010) (citations and quotation

marks omitted), disc. rev. denied, 365 N.C. 195, 710 S.E.2d 35

(2011). There is no colorable argument that this evidence was

inadmissible and defendant makes none. Therefore, we hold that

defendant      has    failed    to   show   that    he    received      ineffective

assistance of counsel.

                               IV.   Sentencing Phase
                                           -12-
      Defendant next argues that the trial court violated his

right to due process by quoting the Bible during sentencing.

              A sentence within the statutory limit will
              be presumed regular and valid. However, such
              a presumption is not conclusive. If the
              record discloses that the court considered
              irrelevant    and    improper    matter   in
              determining the severity of the sentence,
              the presumption of regularity is overcome,
              and   the  sentence   is   in  violation  of
              defendant’s rights.

State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977).

“When the validity of a judgment is challenged, the burden is on

the   defendant      to   show     error    amounting         to   a    denial    of    some

substantial right.”         State v. Bright, 301 N.C. 243, 261, 271

S.E.2d 368, 379-80 (1980).

      The trial court heard arguments from both attorneys, but

neither     aggravating     nor    mitigating          evidence       was    offered.    The

State    asked      for   all    sentences        to    run     consecutively,         while

defendant asked for a single sentence. Defendant’s only argument

at the sentencing hearing was that it was a close case and that

“he   has    been    a    caring    father    and        husband       and   supportive.”

Before      pronouncing     its    sentence,           the    trial    court     addressed

defendant:

              Well, let me say this: I think children are
              a gift of God and I think God expects when
              he gives us these gifts that we will treat
              them as more precious than gold, that we
                                   -13-
           will keep them safe from harm the best as
           we’re able and nurture them and the child
           holds a special place in this world. In the
           19th chapter of Matthew Jesus tells his
           disciples, suffer the little children, to
           come unto me, forbid them not: for such is
           the kingdom of heaven. And the law in North
           Carolina, and as it is in most states,
           treats sexual abuse of children as one of
           the most serious crimes a person can commit,
           and rightfully so, because the damage that’s
           inflicted in these cases is incalculable.
           It’s murder of the human spirit in a lot of
           ways. I’m going to enter a judgment in just
           a moment. But some day you’re going to stand
           before another judge far greater than me and
           you’re going to have to answer to him why
           you violated his law and I hope you’re ready
           when that day comes.

      Defendant correctly observes that taking into account the

religious beliefs of either the trial judge or the defendant is

an   improper    sentencing   consideration.     “Courts    .    .   .   cannot

sanction sentencing procedures that create the perception of the

bench as a pulpit from which           judges announce their personal

sense of religiosity and simultaneously punish defendants for

offending it.” United States v. Bakker, 925 F.2d 728, 740 (4th

Cir. 1991). However, a trial court’s religious references during

sentencing      only   violate   due   process     “where       impermissible

personal views expressed at sentencing were the basis of the

sentence.” United States v. Traxler, 477 F.3d 1243, 1249 (10th

Cir. 2007), cert. denied, 552 U.S. 909, 169 L.Ed. 2d 186 (2007).
                                             -14-
       As    the     Fourth        Circuit     observed       in        Bakker,    “[t]o        a

considerable        extent    a     sentencing       judge    is     the      embodiment       of

public      condemnation      and     social        outrage.       As    the     community’s

spokesperson, a judge can lecture a defendant as a lesson to

that defendant and as a deterrent to others.” Bakker, 925 F.2d

at 740 (citation, quotation marks, and footnote omitted). In

that case, the Fourth Circuit remanded for a new sentencing

hearing     because     it    was     concerned      “that     the       imposition       of    a

lengthy prison term here may have reflected the fact that the

court’s      own    sense     of    religious        propriety          had    somehow    been

betrayed.”         Id. at 741.

       In Arnett v. Jackson, 393 F.3d 681 (6th Cir. 2005), cert.

denied, 546 U.S. 886, 163 L.Ed. 2d 193 (2005), the Sixth Circuit

addressed     a     similar    set    of     circumstances         to     those    here.       In

Arnett, an Ohio state trial court sentenced the defendant to a

fifty-one     year     prison       term     for    pandering       obscenity       and    ten

counts of rape of a child. 393 F.3d at 684. The victim in that

case was the daughter of defendant’s live-in girlfriend. Id. at

683.   At    the     sentencing       hearing,       the     trial       court    castigated

defendant for his crimes, emphasizing the long-term trauma he

inflicted on the victim. Id. at 683-84. The sentencing court

also stated,
                                    -15-
           that passage where I had the opportunity to
           look is Matthew 18:5, 6. “And whoso shall
           receive one such little child in my name,
           receiveth me. But, whoso shall offend one of
           these little ones which believe in me, it
           were better for him that a millstone were
           hanged about his neck, and he were drowned
           in the depth of the sea.”

Id. at 684.   After quoting this passage from Matthew, the court

pronounced its sentence.      Id.     Defendant appealed his sentence

to the Ohio appellate courts.         Id.     The Ohio Court of Appeals

vacated his sentence because of the trial court’s comments.                  Id.

The State appealed and the Ohio Supreme Court reversed the Court

of Appeals, upholding his sentence.           Id.    After exhausting his

direct   appeals,   the   defendant   filed    a    petition    for   writ   of

habeas corpus with the federal district court.            Id.     The federal

district   court    found   that    the     state   courts      had   violated

defendant’s due process rights and ordered that he be released

or resentenced.     Id. at 685.

    On appeal, the Sixth Circuit reversed the district court.

Id. at 688.   The appellate court concluded that

           There is nothing in the totality of the
           circumstances of Arnett’s sentencing to
           indicate that the trial judge used the Bible
           as her “final source of authority,” as found
           by   the   district  court.   Moreover,  the
           Biblical principle of not harming children
           is fully consistent with Ohio’s sentencing
           consideration to the same effect. If the
           trial judge had actually sentenced Arnett
                                         -16-
               based upon a belief that God commanded that
               he be “drowned in the depth of the sea,” we
               would expect the sentence imposed to be the
               maximum length possible. In reality, he was
               sentenced   in   the  lower   half   of   the
               sentencing range allowable under Ohio law.

Id. It accordingly held that the defendant’s “due process rights

were    not     violated    by     the    judge’s     Biblical      reference    at

sentencing.” Id.

       While the trial court here should not have referenced the

Bible or divine judgment in sentencing, defendant cannot show

that his rights were prejudiced in any way or that his sentence

was based on the trial court’s religious invocation. The trial

court    consolidated      the    convictions       into   two    judgments:      it

consolidated the one conviction for rape of a child into the

first judgment along with one count of indecent liberties and

one    count    of   incest;     the    remainder    of    the   convictions    were

consolidated in the second judgment. The trial court sentenced

defendant to 300 to 369 months imprisonment with a consecutive

sentence of 240 to 297 months imprisonment. The most serious

offense in the first judgment was rape of a child, which carries

a 300 month mandatory minimum sentence, N.C. Gen. Stat. § 14-

27.2A(b)       (2009).   The     most    serious     offenses     in   the   second

judgment were Class B1 offenses. Defendant had a prior record

level of 1. The presumptive range for a prior record level 1
                                      -17-
offender convicted of a Class B1                 felony was 192-240 months.

Thus,   the     trial   court   sentenced    defendant         at   the    mandatory

minimum for the first judgment and within the presumptive range

for the second. See N.C. Gen. Stat. § 15A-1340.17 (2009).

       The crimes of rape of a child and incest severely harm

young children, often for the remainder of their lives. “[O]ur

society has a long history of sternly punishing those people who

hurt    young    children.”     Arnett,    393    F.3d    at    687.      The   severe

punishments      imposed   by   our   General     Statutes      for    such     crimes

recognize this harm. The trial court’s remarks similarly touched

on this theme and were clearly aimed at lecturing defendant

about the impact of his crimes on his daughters and on the

community. In doing so, he acted as the “embodiment of public

condemnation and social outrage.” Bakker, 925 F.2d at 740.

       “[W]e    cannot,    under   the    facts    of    this   case,      say   that

defendant was prejudiced or that defendant was more severely

punished because” of the trial court’s religious invocation at

sentencing. State v. Bright, 301 N.C. 243, 262, 271 S.E.2d 368,

380 (1980).2 “In our opinion, the evidence in this case justified



2
  See also State v. Ledwell, 171 N.C. App. 314, 321, 614 S.E.2d
562, 567 (2005) (holding that an error in sentencing was not
prejudicial when defendant was sentenced in the presumptive
range); United States v. Salama, 974 F.2d 520, 522 4th Cir.
(1992) (holding that the trial court’s improper statements
                                    -18-
the sentence imposed.”       Bright, 301 N.C. at 262, 271 S.E.2d at

380. Nevertheless, we remind trial courts that “judges must take

care   to   avoid   using   language   that   could    give    rise   to   an

appearance   that   improper     factors   have   played   a   role   in   the

judge’s decision-making process even when they have not.”              State

v. Tice, 191 N.C. App. 506, 516, 664 S.E.2d 368, 375 (2008).

                            V.     Conclusion

       For the foregoing reasons, we conclude that defendant has

shown no prejudicial error at trial or sentencing and has failed

to show that he received ineffective assistance of counsel.

       NO ERROR.

       Judges CALABRIA and DAVIS concur.




regarding the defendant’s nationality did not constitute a due
process violation where “any impropriety of the district court’s
remarks did not infect the sentence.”), cert. denied, 507 U.S.
943, 122 L.Ed. 2d 727 (1993).
