226 N.C. App. 568
N.C. Ct. App.2013Background
- M.S. was placed in DSS custody on 2 November 2004 at age four after removal from his mother’s home due to neglect allegations.
- M.S. was first placed with defendant and his wife for 21 days, then with his sisters in another foster home, and later returned to defendant’s home for about two-and-a-half years.
- In December 2007, M.S. was placed with defendant again and remained until February 2009, when he left at age eight.
- M.S. reported sexual abuse by defendant during residence with the Ledfords, including shower encounters and oral/anal contact; the Ledfords and therapists corroborated his disclosures.
- DSS investigated the allegations in 2010; M.S. was interviewed at the Child Advocacy Center and repeatedly described sexual acts by defendant.
- A jury convictions followed on two counts of first-degree sexual offense with a child and one count of sexual offense with a child; sentence was 300 to 369 months’ imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence was legally sufficient to convict on all charged offenses | State argues substantial evidence supports each element | Defendant contends credibility/weight issues render the evidence insufficient | No error; evidence sufficient to submit to the jury |
| Whether the court erred by not giving a sua sponte limiting instruction about Nosalek’s polygraph role | Polygraph examiner reference could mislead jurors | No polygraph-related statements actually occurred; no instruction needed | No error |
| Whether the Nosalek testimony regarding defendant’s opinions about punishment was preserved or should be reviewed for plain error and was waived | Admission of Nosalek testimony was improper | Testimony was invited via cross-examination; waiver/plain error applies | Waived; no plain error; overruled as to this challenge |
Key Cases Cited
- State v. Powell, 299 N.C. 95 (1980) (substantial evidence standard; motion to dismiss limited to elements and perpetrator)
- State v. Smith, 300 N.C. 71 (1980) (substantial evidence defined; inferences favorable to State must be considered)
- State v. Earnhardt, 307 N.C. 62 (1982) (weight and credibility for jury; court not to weigh evidence on motions to dismiss)
- State v. Jordan, 321 N.C. 714 (1988) (credibility of witnesses for jury; contradictions do not warrant dismissal)
- State v. Orr, 260 N.C. 177 (1963) (credibility and weighing of witness testimony for jury)