NO. COA13-1292

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Buncombe County

No. 11 CRS 57933, 12 CRS 000043

STEVEN RIGIL MCCANLESS

Appeal by defendant from judgments entered 20 May 2013 by 

Judge Mark E. Powell in Buncombe County Superior Court. Heard 

in the Court of Appeals 23 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Amy Kunstling Irene, for the State. 

Paul Louis Bidwell and Douglas A. Ruley, for defendant. 

ELMORE, Judge.

On 17 May 2013, a jury found Stephen Rigil McCanless

(defendant) guilty of attempted sexual offense by an adult with 

a child and indecent liberties with a child. Judge Mark E. 

Powell sentenced defendant to consecutive terms of 157-198 

months and 13-16 months active imprisonment. Defendant appeals. 

After careful consideration, we find no prejudicial error. 

I. Facts
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The State indicted defendant for offenses that allegedly 

occurred on 3 September 2010 and 1 July 2011. The State alleged 

that on 3 September 2010, defendant, who was fifty-seven-yearsold at the time, “expose[d] his private parts in a public place, 

the Goodwill Store . . . in the presence of another person, 

[M.S.,]” and committed indecent liberties with her. The State 

also charged defendant with the sexual offense of a child 

occurring on 1 July 2011 by “engag[ing] in a sexual act with 

[K.C.][,]” first degree kidnapping, and another count of 

indecent liberties.

Before trial, both parties filed motions with the trial 

court. The State made a motion to join the September and July 

offenses for trial pursuant to N.C. Gen. Stat. § 15A-926(a). 

Defendant filed a motion in limine to exclude “almost comic book 

form” Japanese anime images that depicted sexually suggestive 

pictures of a young girl. The images were found on a computer 

that was seized by law enforcement officers from defendant’s 

home during the criminal investigation. Defendant also filed a 

motion to suppress statements made by him to officers of the 

Asheville Police Department on 6 July 2011. Defendant told 

officers that he was at a Salvation Army Store on 1 July 2011, 

interacted with a young girl, pulled her pants down, touched her 
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leg and vagina, and “motorboated” (blowing air from a person’s 

mouth on to the skin of another) the girl in her buttock area. 

He also divulged facts implicating his involvement with M.S. at 

the Goodwill Store in September 2010 by stating that he may have 

“flashed” someone. The trial court granted the State’s motion 

to join and denied both defendant’s motion in limine and motion 

to suppress. 

II. Analysis

a.) Admission of Images

Defendant first argues that the trial court committed 

prejudicial error by admitting evidence of seven anime images 

taken from defendant’s computer. We disagree. 

Pursuant to N.C. Gen. Stat. § 15A-1443 (2013):

[a] defendant is prejudiced by errors 

relating to rights arising other than under 

the Constitution of the United States when 

there is a reasonable possibility that, had 

the error in question not been committed, a 

different result would have been reached at 

the trial out of which the appeal arises. 

The burden of showing such prejudice under 

this subsection is upon the defendant.

Thus, our standard of review is “whether a reasonable 

possibility exists that the evidence, if excluded, would have 

altered the result of the trial.” State v. Anderson, 177 N.C. 

App. 54, 62, 627 S.E.2d 501, 505 (2006). Important to our 
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analysis is our Supreme Court’s holding that “the presence of 

[other] overwhelming evidence of guilt” can render the erroneous 

admission of evidence harmless. State v. Autry, 321 N.C. 392, 

400, 364 S.E.2d 341, 346 (1988) (citation omitted). 

We need not answer the question of whether the trial court 

erred in admitting this evidence in order to dispose of this 

issue on appeal. Even assuming arguendo that the trial court 

erred in admitting the images, we conclude that the error was 

not prejudicial as to defendant’s convictions of attempted 

sexual offense and indecent liberties with a child against K.C. 

on 1 July 2011.

At trial, the State offered evidence that on 1 July 2011, 

seven-year-old K.C., K.C.’s mother, and K.C.’s adult sister 

arrived at the Salvation Army Store. K.C. testified that she 

walked into the furniture room alone, sat down in a lawn chair, 

defendant approached her, and he used his finger to touch the 

inside of her “pee-pee” or “front part[,]” which were words used 

to describe her vagina. Thereafter, defendant took K.C. behind 

a grill, and she stated that defendant pulled her pants and 

underwear down, “put his tongue on my butt and started licking 

the inside of my butt.” K.C.’s version of events remained 

consistent when she subsequently told her mother, Detective John 
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Rikard, Nurse Alicia Eifler and Dr. Cindy Brown. Cassie York, a 

customer at the store, testified that she observed defendant 

with one knee on the ground as he stood next to K.C. Another 

customer, Wenona Rogers, testified that she saw K.C. with her 

pants partially down as defendant had his tongue on K.C.’s butt 

while “fondling” her. Two store employees, Gary King and Sharon 

Brown, heard K.C. say that defendant licked her buttock. 

Furthermore, K.C.’s adult sister testified that she went to 

locate K.C. and saw defendant “kneeling” in front of K.C. and 

pulling her pants up.

After K.C.’s sister confronted defendant to ask him what he 

was doing, he ran out of the store and drove away in a truck. 

During his interview with police, defendant admitted to patting 

K.C. on the leg, pulling her pants down, touching her buttock 

and vagina, and said that “I’m not looking for sex from a child. 

. . . I’m pretty sure I’m not, but I -- I’d like to find out for 

sure.” This overwhelming evidence of defendant’s guilt 

presented by the State defeats defendant’s contention that a 

reasonable possibility exists that a different result would have

been reached at trial had the trial court barred admission of 

the anime images from the jury. Accordingly, any error, if any, 

was not prejudicial to defendant. 
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b.) Joinder of Offenses 

Defendant also argues that the trial court erred in joining 

the 3 September 2010 offenses and the 1 July 2011 offenses for 

trial because “[t]here [w]as [i]nsufficient [t]ransactional 

[c]onnection [b]etween [t]hese [o]ffenses.” We disagree. 

“[T]he trial judge’s decision to consolidate for trial 

cases having a transactional connection is within the discretion 

of the trial court and, absent a showing of abuse of discretion, 

will not be disturbed on appeal.” State v. Williams, 355 N.C. 

501, 529-30, 565 S.E.2d 609, 626 (2002) (citation and quotation 

omitted). “Abuse of discretion results where the court’s ruling 

is manifestly unsupported by reason or is so arbitrary that it 

could not have been the result of a reasoned decision.” State 

v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see 

also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 

(1985) (“A trial court may be reversed for abuse of discretion 

only upon a showing that its actions are manifestly unsupported 

by reason . . . [or] upon a showing that [the trial court’s 

decision] was so arbitrary that it could not have been the 

result of a reasoned decision.”). “[T]he test on review is are 

the offenses so separate in time and place and so distinct in 

circumstances as to render consolidation unjust and prejudicial 
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to the defendant.” State v. Peterson, 205 N.C. App. 668, 672, 

695 S.E.2d 835, 839 (2010) (citation and quotation omitted).

Under N.C. Gen. Stat. § 15A-926 (2013), “[t]wo or more 

offenses may be joined in one pleading or for trial when the 

offenses, whether felonies or misdemeanors or both, are based on 

the same act or transaction or on a series of acts or 

transactions connected together or constituting parts of a 

single scheme or plan.” In ruling on a motion to join, the 

trial court “must first determine if the statutory requirement 

of a transactional connection is met.” Williams at 529, 565 

S.E.2d at 626 (citation omitted). The presence or absence of a 

transactional connection “is a fully reviewable question of 

law.” Id. (citation omitted). The trial court “should consider 

(1) the nature of the offenses charged; (2) any commonality of 

facts between the offenses; (3) the lapse of time between the 

offenses; and (4) the unique circumstances of each case.” 

Peterson at 672, 695 S.E.2d at 839 (citation and quotation 

omitted). Joinder “is made prior to trial; the nature of the 

decision and its timing indicate that the correctness of the 

joinder must be determined as of the time of the trial court’s 

decision and not with the benefit of hindsight.” State v. 

Silva, 304 N.C. 122, 127, 282 S.E.2d 449, 453 (1981).
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We first note that although the trial court dismissed the 

charge of indecent liberties with a child against M.S. at the 

close of the State’s evidence and the jury found defendant not 

guilty of felony indecent exposure against M.S., those facts are

irrelevant in analyzing whether the trial court abused its 

discretion at the time it entered the order for joinder of the 

offenses. See id. at 127, 282 S.E.2d at 452 (“Although the 

conspiracy charge, the actual link connecting the armed robbery 

and larceny charges, was dismissed at the close of the evidence, 

that fact . . . cannot enter into our consideration of whether 

[the trial judge] abused his discretion in allowing joinder.”).

The evidence in the two cases show resemblances in victim, 

location, motive, and modus operandi. Just like the 

circumstances surrounding the acts against K.C. on 1 July 2011 

as described above, the alleged acts against M.S. on 3 September 

2010 were similar. Four-year-old M.S. and her mother were 

inside a Goodwill store. M.S. and her mother became separated 

by a clothing rack, and M.S. testified that a man showed her his 

“bummy.” By the time M.S. told her mother what happened, the 

alleged perpetrator had already left the store. In sum, the 

State’s theory alleged that in each case defendant’s victim was 

a prepubescent young girl, the acts occurred within months of 
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one another in a donation store while the girl was momentarily 

alone, defendant immediately fled the store after committing the 

act, and defendant exerted acts of sexual misconduct. This 

evidence was sufficient to constitute a transactional connection 

between the acts such that joinder of the offenses was not an 

abuse of discretion.

c.) Motion to Suppress

In his last argument on appeal, defendant contends that the 

trial court erred in denying his motion to suppress statements 

made by him to law enforcement officers because they were not 

voluntary. Again, we disagree. 

Our review of a trial court’s denial of a motion to 

suppress is “strictly limited to determining whether the trial 

judge’s underlying findings of fact are supported by competent 

evidence, in which event they are conclusively binding on 

appeal, and whether those factual findings in turn support the 

judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C. 

132, 134, 291 S.E.2d 618, 619 (1982). If a finding of fact is 

not challenged on appeal, it is “presumed to be supported by 

competent evidence and is binding on appeal.” State v. Taylor, 

178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation and 

quotation omitted). “The trial court’s conclusions of law . . . 
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are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 

208, 539 S.E.2d 625, 631 (2000). 

The voluntary nature of a statement is determined by the 

“totality of the circumstances[.]” State v. Greene, 332 N.C. 

565, 579, 422 S.E.2d 730, 738 (1992) (citation omitted). We 

consider the following factors, none of which is determinative: 

“the defendant’s mental capacity; whether the defendant was in 

custody at the time the confession was made; and the presence of 

psychological coercion, physical torture, threats, or promises.” 

Id. (citation omitted). 

We initially note that defendant does not challenge any of 

the trial court’s findings of fact as being unsupported by 

competent evidence. Instead, he merely states that the findings 

only addressed “some of the statements made by the detectives” 

and were “undermined” by other testimony. However, “the trial 

court’s findings of fact are conclusive on appeal if supported 

by competent evidence, even if the evidence is conflicting.” 

State v. McArn, 159 N.C. App. 209, 211, 582 S.E.2d 371, 373 

(2003) (citation and quotation omitted). Thus, in the case sub 

judice, the trial court’s findings of fact are binding on 

appeal, and our sole task is to determine whether these findings 
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support the trial court’s legal conclusion that defendant’s 

statements to law enforcement officers were voluntary. 

While defendant argues that “[t]he detectives’ lies, 

deceptions, and implantation of fear and hope established a 

coercive atmosphere[,]” the trial court’s findings indicate the 

contrary:

23. Information was given to the Defendant 

regarding several topics including the Child 

Medical Examination (CME) performed on the 

minor child following the incident of July 

1, 2011 and the Sexual Assault Kit involving 

saliva residue and DNA upon the minor child. 

Rikard wanted the Defendant to believe that 

DNA testing implicated the Defendant however 

the detective never lied to the Defendant by 

stating that the officer had received DNA 

testing implicating the Defendant with the 

minor child. Officer Rikard informed the 

Defendant that the CME was performed on the 

minor child but did not tell the Defendant 

that the test results of the CME had not 

been received by the officers[.] 

. . . 

24. Officer Loveland informed the Defendant 

that there was a video of the incident, 

without indicating exactly what information 

the video revealed[.]

. . . 

29. Detective Rikard followed standard 

interrogation procedure with the Defendant 

which included sharing some information with 

the Defendant to elicit a response and 

withholding other information thereby 

allowing the Defendant to speak if he wished 
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to do so on the topic being discussed.

30. The profanity used by Rikard was not 

continuous, ongoing or in a manner which was 

used to intimidate the Defendant over an 

extended period of time. The profanity used 

by Rikard did not appear to have a 

significant effect upon the Defendant and 

his statements to the officers.

. . . 

35. The officers did not tell the Defendant 

the entire contents of the Goodwill Store 

video nor were they obligated to do so.

Moreover, the trial court found that: 

Defendant arriv[ed] at the police department 

on his own volition, [was] under no 

compulsion to remain in the interview room, 

[was] not being restrained in any manner, 

was not intimidated by a show of force of 

the officers, display of any type of 

weapons, promise of reward, leniency or any 

other inducement. In addition the interview 

room was open, the Defendant was left alone, 

departed the police department alone when 

the interview was completed, and was offered 

amenities such as drinking water and 

bathroom facilities. The interview was not 

excessively long in duration and there is no 

indication the Defendant was incommunicado 

from friends or family. . . . There is no 

evidence that the Defendant was under any 

physical or mental impairment nor was he 

under the influence of controlled 

substances, medications, or alcohol during 

this interview[.]

These findings are sufficient to conclude that defendant’s 

statements were voluntary. See State v. Barden, 356 N.C. 316, 
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339, 572 S.E.2d 108, 125 (2002) (holding that defendant’s 

statements to police were voluntary where defendant was offered 

cigarettes and refreshments, had the freedom to use the rest 

room without being accompanied by an officer, was never 

restrained or handcuffed during questioning, did not remain in 

the interview for a prolonged period of time, and did not 

receive threats or pressure to give a statement). Thus, the 

trial court did not err in denying defendant’s motion to 

suppress and admitting his statements at trial.

III. Conclusion

In sum, we expressly decline to address whether or not the 

trial court actually erred by denying defendant’s motion in 

limine to preclude the State from presenting jurors with the 

anime images found on defendant’s computer. Even assuming 

arguendo that the trial court erred, the images did not 

prejudice defendant due to other overwhelming evidence of his 

guilt. Furthermore, the trial court did not err in joining the 

September and July offenses for trial because a transactional 

connection was present between the acts. Finally, the trial 

court’s denial of defendant’s motion to suppress and subsequent 

admission of defendant’s statements was free of error as his 

statements were voluntary. 
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No prejudicial error. 

Judges McCULLOUGH and DAVIS concur.