State v. Tysinger, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 15, 2020)

This Davidson County case involved the sexual abuse of a girl at ages 10 and 13. The defendant was the child’s grandfather. In addition to assaulting the child, the defendant also abused the child’s mother, his daughter. The child’s mother reportedly traded sex with her daughter for drugs from the defendant. The child’s mother cooperated with the investigation. She pled guilty pursuant to Alford to attempted felony child abuse on the condition that she truthfully testify against the defendant at his trial. Defense counsel thoroughly questioned the child’s mother regarding her plea arrangement, but the trial court sustained an objection to questions relating to the Alford aspect of the plea. It ruled that the evidence that the child’s mother took an Alford plea was not relevant and, if it was relevant, that it “did not survive the [Rule 403] balancing test.” Slip op. at 4. The defendant was convicted of all counts at trial and sentenced to a minimum term of 1200 months. The trial court also ordered lifetime sex offender registration and satellite-based monitoring without objection from the defendant. He appealed, challenging the trial court’s decision to exclude evidence of the Alford nature of the plea. He also sought certiorari review of the SBM order, as he failed to preserve his direct appeal of that issue.

(1) The defendant’s objection to the evidentiary ruling was preserved. While the defendant failed to make an offer of proof by conducting voir dire of the witness, the plea transcript with the agreement between the State and the child’s mother was made a part of the record. Trial counsel’s extensive questioning about the plea deal also made the objection obvious from context, thus preserving the issue for appellate review.

(2) The defendant claimed that the Alford plea was relevant to the credibility of the witness and that the trial court erred in sustaining the objection to that line of questioning, causing prejudicial error. The court assumed that the Alford nature of the plea was relevant evidence, but found no abuse of discretion in the trial court’s exclusion of the evidence under Rule 403 of the North Carolina Rules of Evidence as potentially confusing to the jury:

Under the circumstances of this case, we agree with the trial court that evidence [the] mother entered an Alford plea would serve to confuse the jury regarding the legal details of her plea. In particular, someone would have to explain the meaning of an Alford plea, and [the] mother’s own understanding of the exact meaning of an Alford plea may have been different that the technical legal meaning or the intent Defendant assumes she had. Slip. op. at 14.

(3) The defendant failed to object on any basis to the order imposing SBM at the time of its entry and failed to give written notice of appeal of the order (as required for civil matters such as SBM orders). He sought review via petition for writ of certiorari and asked the court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of his unpreserved argument. The court declined both requests and dismissed the argument, finding the circumstances did not warrant the “extraordinary steps” of both granting certiorari and invoking Rule 2.  

Judge Murphy wrote separately to concur. According to him, the trial court erred in finding the Alford plea evidence irrelevant. The trial court further erred in conducting a Rule 403 balancing test after it found the evidence irrelevant and excluding the evidence on the basis of Rule 403 was an abuse of discretion. However, these errors were not prejudicial under the circumstances of the case.