NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 7 August v. Catawba County No. 09 CRS CLYDE GARY WHISENANT

Transcription

1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA NORTH CAROLINA COURT OF APPEALS Filed: 7 August 2012 STATE OF NORTH CAROLINA v. Catawba County No. 09 CRS CLYDE GARY WHISENANT Appeal by defendant from judgment entered 26 August 2011 by Judge John O. Craig III in Catawba County Superior Court and review by writ of certiorari of order entered 26 August 2011 by Judge John O. Craig III in Catawba County Superior Court. Heard in the Court of Appeals 26 April Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant. ELMORE, Judge. Clyde Gary Whisenant (defendant) appeals from jury convictions of (1) first degree statutory rape and (2) taking indecent liberties with a child. After careful consideration, we find no error in the trial court s convictions, but we

2 -2- reverse and remand the trial court s order for lifetime satellite-based monitoring (SBM). I. Background Around June 2009, defendant moved in with his daughter, Amanda Whisenant, and her three children, S.W., D.B., and J.W. S.W., the victim in this case, was twelve years old at the time. On 24 August 2009, Amanda was at work and S.W. was in her mother s room, lying in bed watching television. Around noon, defendant entered Amanda s room, sat on the edge of the bed, and then got on top of S.W. and took off her underwear. Defendant then took off his underwear and began to have sexual intercourse with her. After nearly 10 to 15 minutes, J.W. opened the bedroom door and stuck his head inside, then walked back out. Defendant got up, shut and locked the door, then continued to have intercourse with S.W. for 5 to 10 more minutes. Defendant then put his pants back on and left the bedroom. S.W. got up, put her underwear back on and went out onto the front porch. Around 2:15 p.m., S.W. s mother returned home from work and took S.W., J.W., and defendant to the grocery store. While defendant and J.W. were inside the store, S.W. told her mother what defendant had done while she was at work. When they

3 -3- returned to the car, Amanda drove them home. Once they arrived at home, Amanda asked S.W. to tell her what had happened. Afterwards, Amanda told defendant and J.W. that she was taking S.W. to get something for school and then immediately drove S.W. to Catawba Valley Medical Center. Defendant left Amanda s home that night and told J.W. that he was going to Morganton. While at the hospital, a full physical examination was done, including a pelvic examination and a rape kit. hospital then called in a sexual assault to the police. The Deputy Sheriff Randy Armstrong responded to the call and spoke with Amanda. Sergeant Eckard spoke with Child Protective Services Social Worker Cara Noblitt about the case, and they determined that a child forensic interview needed to be conducted the following morning, 25 August They decided that Ms. Noblitt would conduct the interview with S.W. because they had already met the previous day at the hospital and they thought it would be more appropriate because she was a female, given the circumstances of this case. Sergeant Eckard closely observed the interview from the next room over closed circuit television. After the interview, Sergeant Eckard and Ms. Noblitt met with Amanda to discuss what S.W. had disclosed during the interview. Amanda gave Sergeant Eckard a telephone number to

4 -4- contact defendant, but Sergeant Eckard did not succeed in reaching defendant. On that same day, Sergeant Eckard obtained a warrant to arrest defendant for one count of first degree rape of a child. Later that evening, Sergeant Eckard attempted to call defendant several more times and ultimately received a message that the phone number had been disconnected or changed. Sergeant Eckard also contacted Joyce Curtis, defendant s other daughter, informing her that he had a felony warrant for her father s arrest and to let defendant know that he should turn himself in. On 1 September 2009, Sergeant Eckard went to look for defendant in an area in Burke County past Morganton at the home of Bill Ramsey, a friend of defendant s whom he would periodically stay with. After no response at Ramsey s residence, Sergeant Eckard, with the help of the Burke County Sheriff s Office, went across the street to the home of Aaron Pearson, but defendant was not there. On 3 September 2009, Sergeant Eckard contacted the U.S. Marshall Service to assist in the search for defendant. On 4 September 2009, Joyce Curtis contacted Sergeant Eckard with information regarding defendant s location. Sergeant Eckard and three or four Marshalls then canvased the neighborhood near the homes of Aaron Pearson and

5 -5- Bill Ramsey, asking neighbors if they had seen defendant and requesting that they contact officials if they found him. Following a tip, Sergeant Eckard and the Marshalls located defendant and arrested him. On 5 October 2009 defendant was indicted for (1) first degree statutory rape and (2) taking indecent liberties with a child. This case came up for trial on 22 August 2011, and on 26 August 2011, defendant was found guilty of both charges. Defendant was sentenced to 345 to 423 months in prison. Additionally, on 26 August 2009 the trial court ordered defendant to register as a sex offender and upon release from imprisonment, enroll in SBM, without first holding a hearing. Defendant now appeals. II. Arguments A. Limiting Instructions First, defendant contends that the trial court invaded the province of the jury and abandoned its role as a neutral arbiter when it instructed the jury on corroborating testimony. He argues that the trial judge expressed his opinion by instructing the jury that four witnesses testimonies were for the purposes of corroborating the testimony of other witnesses.

6 -6- During the trial, defendant asked the trial court to give limiting instructions for four of the witnesses, but he did not object to the trial court s choice of language. Although defendant did not object to any of the instructions given at trial, appellate review is deemed preserved because of the mandatory statutory prohibitions against the judicial expression of an opinion on the evidence set out in N.C. Gen. Stat. 15A and 15A State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005). When evaluating whether a judge s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless. State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995) (citations and quotation omitted). Here, the judge did not express his opinion on the evidence and thus defendant cannot show prejudice. Limiting instructions are proper when a trial judge instructs the jury to consider prior consistent statements only for the purpose of corroborating the witness[es ] testimony at trial if the jury found that the prior statements did corroborate the trial testimony. State v. Detter, 298 N.C. 604, 629, 260 S.E.2d 567,

7 (1979) (citation omitted). Furthermore, even omission of the second half of the instruction if you find that this statement does corroborate his/her testimony is not prejudicial error, because it is always a question for the jury to determine whether or not the prior consistent statement does in fact corroborate the witness[es ] testimony at trial. Id. at 630, 260 S.E.2d at 585 (citation omitted). Here, defendant points to Williford v. Jackson, in which this Court held that the trial court had improperly expressed its opinion when it stated that a witness s testimony corroborated to a considerable extent the testimony of Mr. William Williford. Williford, 29 N.C. App. 128, 131, 223 S.E.2d 528, 530 (1976). However, unlike the court in Williford, the trial court here did not comment on the witness s credibility or state that the testimony actually corroborated a prior witness s testimony. Instead, the trial court s specific language for the purpose of was used to inform the jury that the reason for that particular witness s testimony was to either confirm or contradict prior testimony, and it was not to be regarded as substantive evidence. Even if the instructions were not clear at trial, they were later clarified when the trial court gave its final instructions to the jury, stating, You are

8 -8- the sole judges of the credibility, in other words, the believability of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or any part or none of what a witness has said on the stand. Here, the trial court expressly stated that only the jurors could judge the credibility of any witness. Furthermore, the trial court emphasized to the jury in its instructions, As the presiding judge I am required by law to be impartial. You should not mistakenly infer that I have implied any of the evidence should be believed or disbelieved, that a fact has been proved or not or what your findings ought to be. Contrary to defendant s assertions, the instructions on corroboration were proper and did not prejudice defendant. B. Right to Testify Defendant next argues that the trial court misadvised him about his constitutional right to testify. Specifically, defendant claims that the trial court told him that if he testified, the State could ask him about his criminal record even though all fifteen of his prior convictions would have been inadmissible. Defendant contends that this advice impermissibly

9 -9- chilled his constitutional right to testify and that he is entitled to a new trial as a result. We disagree. [T]rial court error which infringes a defendant s constitutional rights is presumed to be prejudicial and entitles him to a new trial unless the error is harmless beyond a reasonable doubt. State v. Autry, 321 N.C. 392, 403, 364 S.E.2d 341, 348 (1988) (citation omitted); see also N.C. Gen. Stat. 15A-1443(b) (2011). The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless. Autry, 321 N.C. at 403, 364 S.E.2d at 348 (citing N.C. Gen. Stat. 15A-1443(b)). Accordingly, we review whether the trial court s statement to defendant regarding his right to testify was harmless error. In Autry, the trial court informed the defendant that [t]he prosecutor could, on good faith, ask you about prior misconduct, whether it resulted in convictions in court if they had some good faith reason to ask those questions, and you would be under oath to answer the questions truthfully. Autry, 321 N.C. at 402, 364 S.E.2d at 347. Our Supreme Court concluded that the trial court gave instructions inconsistent with Rule 608(b) and therefore committed error. Id. at 403, 364 S.E.2d at 348. However, it concluded that, though the trial court did

10 -10- err in its instruction, the error is harmless because [o]verwhelming evidence of defendant s guilt of the crimes charged may, and in this case does, render a constitutional error harmless. Id. (citation omitted). The Court ultimately held that, where the trial court s error in its instructions to defendant was insulated by defendant s access to and actual conference with his attorney, the trial court s instructional error is harmless beyond a reasonable doubt. Id. at 404, 364 S.E.2d at 348. Here, during pretrial conferences, defendant moved to exclude the evidence of prior convictions and any other crimes that he had committed. granted this motion. The State did not object, and the judge Subsequently, after the close of the State s evidence at trial, the judge spoke with defendant, addressing his decision not to testify. The judge s comments on the possible disadvantages of testifying, such as questioning regarding defendant s prior convictions, did not appear to affect or influence defendant s decision not to testify. Though the judge s comments may have been error, as in Autry, the error was harmless. The trial court re-affirmed that defendant and his attorney made the decision together not to testify, believing it was

11 -11- their best strategy. Furthermore, defendant s attorney wished to have the record show that it was his recommendation to defendant that he not put on any evidence as sometimes it is more important to have the last argument. The trial court again asked defendant if he agreed with and understood his attorney s strategy, to which he replied affirmatively. Here, as in Autry, defendant s access to and actual conference with his attorney insulated the trial court s instructional error. We conclude that the trial court s error was harmless beyond a reasonable doubt. The trial court did not chill defendant s constitutional right to testify as defendant and his counsel together had already determined that he was not going to testify when the trial court mentioned the possibility of questioning regarding his criminal record. C. Flight Instruction Defendant next argues that the trial court erred by admitting evidence of the manhunt for him and by instructing the jury on flight because there was no evidence that he was attempting to avoid apprehension. We disagree. Here, defendant objected to the flight instruction at trial and now argues that, as a result of the erroneous instruction,

12 -12- he is entitled to a new trial. [Arguments] challenging the trial court s decisions regarding jury instructions are reviewed de novo by this Court. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009)(citations omitted). [A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted). Where jury instructions are given without supporting evidence, a new trial is required. State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). However, an error in jury instructions is prejudicial and requires a new trial only if 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. State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. 15A-1443(a)). An instruction on flight is appropriate where there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime. State v. Ethridge, 168 N.C. App. 359, 362, 607 S.E.2d 325, 327 (2005) (citation and quotation omitted). Furthermore, [t]he relevant inquiry concerns whether there is evidence that defendant left

13 -13- the scene of the [crime] and took steps to avoid apprehension. Id. at 362, 607 S.E.2d at (citation and quotation omitted). If we find some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant s conduct does not render the instruction improper. Id. at , 607 S.E.2d at 328 (citation and quotation omitted). Here, however, there is ample evidence to suggest that defendant left the scene of the assault in order to avoid apprehension. Defendant left town on 24 August 2009, the same day as the assault, and was not found until 4 September 2009, 5 to 10 miles outside of Morganton. Defendant left a note stating that I will be at Anne s for a couple of days and I may go up to Craig s. Morganton. Additionally, he told J.W. that he was going to Sergeant Eckard performed an extensive search, retaining the help of a state social worker, the Burke County Sheriff s Department, and the United States Marshall Service. Furthermore, the jury instructions regarding flight read, Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or

14 -14- show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the defendant s guilt. The trial court made it clear to the jury that the circumstance of flight, even if found by the jury, was alone not enough to prove that defendant was guilty of the crimes charged. Therefore, we conclude that the instruction on flight was not prejudicial and does not entitle defendant to a new trial. D. Expert and Lay Opinion Testimony Defendant next argues that the trial court committed plain error by admitting expert and lay opinion testimony that he was guilty. Here, defendant asserts that the admission of the expert and lay testimony was prejudicial because it unfairly bolstered S.W. s credibility by reaffirming that she was telling the truth. We disagree. [A] trial court is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. State v. Paddock, 204 N.C. App. 280, 288, 696 S.E.2d 529, 535 (2010) (citation and quotation omitted); see also N.C. Gen. Stat. 8C-1, Rule 702(a) (2011). Nevertheless, our appellate courts have consistently held that the testimony

15 -15- of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence. Id. at 288, 696 S.E.2d at (citation and quotation omitted). Opinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn. Id. at 288, 696 S.E.2d at 535 (citation and quotation omitted). Defendant claims that Dr. Wesselman (the emergency room physician) and Nurse Kale testified as expert witnesses and expressed opinions as to the guilt of defendant in their testimonies. Defendant points to the following statements made by Dr. Wesselman, claiming that they conveyed an opinion by Dr. Wesselman that defendant was guilty: we did a pelvic examination because of the complaint of a sexual assault ; we treated the patient afterwards for possible sexual assault ; we always offer patients who have sexual assault the opportunity to take a drug called Plan B, which is a hormonal treatment. The testimony cited by defendant reflects a summary of S.W. s hospital visit regarding the underlying factual premise and was not indicative of defendant s guilt. Paddock, 204 N.C. App.

16 -16- at 288, 696 S.E.2d at 535. At no point in Dr. Wesselman s testimony did he indicate an opinion regarding the sexual assault of S.W. Dr. Wesselman objectively testified regarding the course of action the hospital personnel took in treating S.W. for her possible injuries, and it was not plain error to admit his testimony. Contrary to defendant s assertion, Nurse Kale was not tendered as an expert witness and did not testify as one. Defendant claims that Nurse Kale went beyond the point of assisting the jury and expressed opinion as to the guilt of defendant. See State v. Keen, 309 N.C. 158, 162, 305 S.E.2d 535, (1983) (holding that a psychiatrist improperly gave his opinion by responding that an attack occurred on [the victim and] that this was a reality after being asked about his opinion as to the defendant s state of mind at the time he spoke with the psychiatrist, not the defendant s alleged guilt). However, during Nurse Kale s testimony, she read directly from the medical record under the section entitled description of the incident. Her testimony that there was actual penetration of the vagina did not reflect her opinion regarding this matter. Rather, it was a recitation of the notes that she took during S.W. s hospital visit and reflected the information that S.W.

17 -17- told her, not her opinion on the truthfulness of the allegations. Unlike the witness in Keen, Nurse Kale did not state that in [her] opinion such an [assault] had been committed ; instead she testified regarding the statements that S.W. communicated to her. See Keen, 309 N.C. at 163, 305 S.E.2d at 538. Additionally, before Nurse Kale s testimony, the jury was given limiting instructions to inform it that her testimony was for the purpose of corroboration only, supporting the conclusion that her testimony was not to be interpreted as substantive evidence. Accordingly, Nurse Kale s testimony did not express opinion as to the guilt of defendant, and defendant cannot show plain error in the admission of her testimony. Defendant also claims that there was prejudicial error in admitting lay opinion testimony from Deputy Armstrong, Investigator Scronce, Sergeant Eckard, and Amanda Whisenant. Defendant contends that these witnesses invaded the province of the jury, as they drew inferences from the evidence to express opinions regarding defendant s guilt. See State v. Turnage, 190 N.C. App. 123, 129, 660 S.E.2d 129, (2008), reversed on other grounds, 362 N.C. 491, 666 S.E.2d 753 (2008) (finding error in the officer s testimony that the defendant was probably in the process of breaking into a residence ). Here,

18 -18- the witnesses testimonies that are in question did not express opinion regarding defendant s guilt. Instead, they were objective responses to questions asked about the sequence of events. Defendant cannot show that the questioned testimony was admitted in error. E. Lifetime Satellite-Based Monitoring Lastly, defendant argues that the trial court violated the satellite-based monitoring statutes and deprived him of due process of law when the court ordered him to submit to lifetime SBM without a hearing. Defendant failed to timely appeal this issue but petitioned this Court for a writ of certiorari, which we grant in order to review defendant s challenge to the SBM order. Defendant also contends that the trial court erred in determining that his conviction offenses were aggravated offenses. i. Due Process Here, the Honorable Judge Craig sentenced defendant to a term of 345 to 423 months in prison on 26 August 2009 and defendant entered oral notice of appeal. Subsequently, on 30 August 2011, a Judicial Findings and Order for Sex Offenders-

19 -19- Active Punishment was sent to Judge Craig for his signature. Thereafter, Judge Craig signed the order, requiring defendant to submit to lifetime SBM and lifetime sex offender registration. In evaluating the lawfulness of a trial court order requiring a convicted defendant to enroll in SBM, we review the trial court s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. State v. Clark, N.C. App., 714 S.E.2d 754, 761 (2011) (citation and quotation omitted). [A]n SBM-related proceeding is civil rather than criminal in nature and a defendant seeking to challenge an order requiring his or her enrollment in SBM must give written notice of appeal in accordance with N.C.R. App. P. 3(a) in order to properly invoke this Court s jurisdiction. Id. (citation and quotation omitted); see N.C.R. App. P. 3(a) (2011). Under Rule 3(a), a defendant may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed[.] N.C.R. App. P. 3(a) (2011). Section A provides: (a) When an offender is convicted of a reportable conviction as defined by G.S (4), during the sentencing phase, the district attorney shall present to the court

20 -20- any evidence that (i) the offender has been classified as a sexually violent predator pursuant to G.S , (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S A or G.S A, or (v) the offense involved the physical, mental, or sexual abuse of a minor. N.C. Gen. Stat A (a) (2011). The framework set forth in N.C.G.S A requires a trial court to hear evidence presented by the State and any possible contrary evidence by a defendant before making its determination under subsection (b). State v. Davison, 201 N.C. App. 354, 361, 689 S.E.2d 510, 515 (2009). The statute specifically states, The offender shall be allowed to present to the court any evidence that the district attorney s evidence is not correct. N.C. Gen. Stat A (a) (2011). Subsequently, [a]fter receipt of the evidence from the parties, the court shall determine whether the offender s conviction places the offender in one of the categories described in G.S (a), and if so, shall make a finding of fact of that determination[.] N.C. Gen. Stat A (b) (2011). Here, the trial court did not conduct an SBM hearing before ordering defendant to submit to lifetime SBM. Because the trial court did not follow the procedure required under section A, we must remand the issue to the trial court in order

21 -21- for it to hold an SBM hearing. N.C. Gen. Stat A (2011). At that hearing, the State and defendant may both have the opportunity to present evidence regarding whether defendant shall be ordered to submit to lifetime SBM. ii. Aggravated Offenses Defendant also contends that the trial court erred in determining that his conviction offenses were aggravated offenses. Defendant maintains that his conviction offenses, first degree rape of a child and taking indecent liberties with a child, did not require either the use of force or the threat of serious violence or that the victim be less than twelve years old. See N.C. Gen. Stat (1a) (2011). We disagree. An aggravated offense is defined as: [A]ny criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old. N.C. Gen. Stat (1a) (2011). In deciding whether the conviction offense fits within the definition of aggravated offense, this Court has held that the trial court is only to

22 -22- consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction. State v. Brown, N.C. App., 710 S.E.2d 265, 276 (2011) (citation and quotation omitted), aff d, 722 S.E.2d 508 (2012). Here, defendant was convicted of taking indecent liberties with a child and first degree statutory rape of a twelve year-old child. His convictions do not fit within the second definition of aggravated offense, as the victim here was not less than twelve years of age. However, his conviction does fit under the first definition of aggravated offense. This Court has previously held that because rape of a child under the age of 13 necessarily involves the use of force or threat of serious violence, the essential elements of first degree rape [of a child] fit within the [first] statutory definition of an aggravated offense. Brown, N.C. App. at, 710 S.E.2d at 276 (citation and quotation omitted). Accordingly, because defendant was convicted of raping a child under the age of 13, his conviction fits the definition of an aggravated offense and the trial court properly determined that defendant s offenses were aggravated.

23 -23- III. Conclusion For the reasons set forth above, we find no error in the trial court s judgment, but we reverse the trial court s order requiring defendant to submit to lifetime SBM and remand to the trial court for an SBM hearing. No error in part; reversed in part. Judges GEER and THIGPEN concur. Report per Rule 30(e).