Opinion
No. COA14–319.
04-21-2015
STATE of North Carolina, v. Willie BARKLEY, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Nancy A. Vecchia, for the State. W. Michael Spivey for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Nancy A. Vecchia, for the State.
W. Michael Spivey for defendant-appellant.
GEER, Judge.
Defendant appeals from a judgment entered on his convictions of first degree rape and first degree burglary. On appeal, defendant primarily argues that the indictment for first degree rape was facially invalid because it failed to adequately allege the name of the victim. We hold that the indictment complied with N.C. Gen.Stat. § 15–144.1(a) (2013) by naming the victim as “Kimberly Berry AKA ‘Jessica,’ “ and was, therefore, facially valid.
Facts
The State's evidence tended to show the following facts. On 14 February 2012, Calvin Mitchell was living in a duplex on Clarendon Street in Durham, North Carolina. A woman whom he knew by the name of “Jessica” also lived there from time to time and kept some of her clothes there. On 14 February 2012, defendant, who had a knife, kicked in the door of the duplex, told Mr. Mitchell to stay where he was, and then stabbed a mattress with his knife. Defendant started cussing at Jessica and made her remove her clothes. He ordered Mr. Mitchell to go into the living room and stay on the couch, but, before Mr. Mitchell left, he saw defendant push the woman down on the bed, climb on top of her, and start having sexual intercourse with her.
Officers Andrew Wilkinson and Joseph E. Harris of the Durham Police Department (“DPD”) responded to a 911 emergency call regarding a disturbance with a weapon at the duplex. The officers arrived at the duplex around 4:49 a.m. and found Mr. Mitchell on the front porch of the duplex. He told the officers that a man was inside the house with a knife raping a woman. When the officers entered the house, they found defendant on a bed on top of a woman. Both defendant and the woman were naked and appeared to be engaged in vaginal intercourse. Defendant had a steak knife in his right hand pointed at the upper body of the victim. Officer Harris ordered defendant to drop the knife and get off the woman. Defendant complied, and the officers placed him in handcuffs. The woman, who was crying, made efforts to cover herself. It appeared to the officers as if the mattress had been stabbed with a knife.
The woman identified herself to Officers Harris and Wilkinson as Kimberly Berry. Officer Harris did not require her to produce a driver's license or any other form of identification that night. In his investigative report, Officer Harris stated that the woman was homeless.
Detective Benjamin Glover with the Special Victim's Unit of the DPD arrived at the scene around 5:30 a.m., after defendant had been removed from the residence and placed in a patrol car. The woman was dressed and sitting on the kitchen floor crying and shaking. She identified herself to Detective Glover as Kimberly Berry. Later that morning, the woman went to the Emergency Room at Duke University Medical Center, where she was seen by Theresa Arico, a Sexual Assault Nurse Examiner (“SANE” nurse). The hospital armband worn by the woman identified her as Kimberly Berry.
On 5 March 2012, defendant was indicted for first degree rape and first degree burglary. The indictment identified the victim as “Kimberly Berry.” In the following months leading up to defendant's trial, Detective Glover obtained a subpoena for Kimberly Berry. He searched DMV records and other databanks available to the DPD, tried calling the phone number he had been given for her, and went out looking for her, but was unable to locate a Kimberly Berry or confirm her name prior to trial. On 1 July 2013, the State obtained a superseding indictment charging defendant with the rape of “Kimberly Berry AKA ‘Jessica.’ “
At trial, the State introduced as illustrative evidence a photograph of a woman whom all three officers, the SANE nurse, and Mr. Mitchell identified as the victim. The officers and the SANE nurse testified that the woman in the photograph identified herself to them as “Kimberly Berry.” Mr. Mitchell testified that he knew her only by the name “Jessica,” but he did not know if “Jessica” was her real name.
The jury found defendant guilty of first degree burglary and first degree rape. The trial court sentenced defendant to a presumptive-range term of 400 to 540 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the indictment for first degree rape was facially invalid because it did not provide adequate notice of the alleged victim's name. “[W]hen an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant's failure to contest its validity in the trial court.” State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (2001). This Court reviews de novo whether an indictment is facially invalid. State v. McKoy,196 N.C.App. 650, 654, 675 S.E.2d 406, 410 (2009).
“Our Supreme Court has stated that an indictment is fatally defective when the indictment fails on the face of the record to charge an essential element of the offense.” State v. Bartley, 156 N.C.App. 490, 499, 577 S.E.2d 319, 324 (2003). N.C. Gen.Stat. § 15–144.1(a) specifies what an indictment for first degree rape must allege:
In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her,by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.
(Emphasis added.)
This Court has held that an indictment drawn in accordance with N .C. Gen.Stat. § 15–144.1 is sufficient to “apprise[ ] the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense” and, thus, is sufficient to withstand constitutional challenge. State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978). See also State v. Walker, 84 N.C.App. 540, 542, 353 S.E.2d 245, 247 (1987) (holding that indictment which met the criteria of N.C. Gen.Stat. § 15–144.1 was not fatally defective).
Defendant asserts that the indictment in this case failed to allege the name of the victim as required by N.C. Gen.Stat. § 15–144.1. This Court has recognized that the victim's name is not merely an evidentiary matter. Rather, “the identity of the victim is still of critical importance in avoiding double jeopardy issues.” In re M.S., 199 N.C.App. 260, 266, 681 S.E.2d 441, 445 (2009). Therefore, “the indictment must name the victim in some fashion.” Id.
In McKoy,this Court held that an indictment naming the victim by her initials was facially valid where it appeared that the defendant “was not confused regarding the identity of the victim.” 196 N.C.App. at 658, 675 S.E.2d at 412. Here, the indictment identified the victim as “Kimberly Berry AKA ‘Jessica.’ “ Thus, on its face, the indictment contains the victim's first and last name in addition to a nickname or alias to identify the victim. We hold that the indictment is in compliance with N.C. Gen.Stat. § 15–144.1 and is facially valid.
Defendant, nevertheless, cites State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994), and State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967), arguing that “[w]here an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal.” Abraham, 338 N.C. at 340, 451 S.E.2d at 144. However, “[t]he issue of variance between the indictment and proof is properly raised by a motion to dismiss.” State v. Baldwin, 117 N.C.App. 713, 717, 453 S.E.2d 193, 195 (1995). Because defendant did not, at trial, move to dismiss the charge of rape on the basis of a fatal variance between the evidence and the indictment, defendant has waived any argument regarding that issue. N.C.R.App. P. 10(a)(1) and (3). See Baldwin, 117 N.C.App. at 717, 453 S.E.2d at 195 (holding defendant waived right to raise argument regarding fatal variance in indictment because defendant moved to dismiss on double jeopardy rather than variance grounds). We note, however, that even assuming the issue were properly preserved, defendant has not pointed to any evidence presented at trial that the victim's name was anything other than Kimberly Berry or Jessica.
In conclusion, we hold that the indictment, identifying the victim as “Kimberly Berry AKA ‘Jessica’ “ met the criteria of N.C. Gen.Stat. § 15–144.1(a) for naming the victim and was therefore facially valid. Defendant's arguments regarding the State's inability to locate the victim prior to trial or confirm her name are irrelevant to the question of the facial validity of the indictment.
II
Defendant next argues that his constitutional right to confront the witnesses against him was violated when the court permitted the State to admit the victim's out-of-court statements that her name was Kimberly Berry. We first address the State's contention that defendant failed to preserve this issue.
It is well settled that constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal. State v. Carroll, 356 N.C. 526, 541, 573 S.E.2d 899, 910 (2002). Prior to trial, defendant moved to suppress any statements made by the victim on hearsay and confrontation grounds but the trial court declined to rule on his motion. At trial, defendant objected to the admission of the victim's out-of-court statements regarding her name on hearsay grounds, but did not renew his pretrial objection on confrontation grounds. Defendant contends that because defendant's counsel asserted during the pretrial hearing that defendant “does not waive his confrontation-his rights to confront the witness and has not waived it by any actions[,]” it was clear to the trial court that “Defendant's objection to the hearsay identification testimony was grounded in his constitutional right under the Sixth Amendment....” We disagree.
Our Supreme Court has held that “[a] motion in limineis insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.” State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995). Here, defendant objected to the evidence at trial, but only on hearsay grounds. This Court has held that an objection on hearsay grounds does not invoke the Confrontation Clause. See State v. Mobley, 200 N.C.App. 570, 572, 684 S.E.2d 508, 510 (2009) (holding confrontation issue not preserved where “at trial, defendant only raised an objection to this testimony on hearsay grounds and did not raise the constitutional question”).
Because the trial court did not rule on defendant's motion to suppress, and defendant failed to renew his objection at trial on confrontation grounds, the trial court never ruled on the constitutional issue. Defendant, therefore, failed to preserve this issue on appeal. SeeN.C.R.App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion.”).
Further, even if defendant had preserved the Confrontation Clause issue for appeal, defendant did not object on any basis when Officer Wilkinson identified the photograph of the victim as being “Ms. Berry” and when Officer Wilkinson read his investigative report, which again identified the victim as being Kimberly Berry. It is well established that “[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984).
In any event, even assuming without deciding that the trial court erred in admitting evidence identifying the victim as Kimberly Berry, we find that any error “was harmless beyond a reasonable doubt.” N.C. Gen.Stat. § 15A–1443(b) (2013). Defendant does not challenge his conviction of first degree burglary, but rather asks only that his conviction of first degree rape be vacated. Mr. Mitchell and the officers all saw defendant engaging in vaginal intercourse with the victim while threatening her with a knife. It is inconceivable that the jury would have reached any verdict other than guilty. While defendant argues on appeal that he was prejudiced because the challenged evidence was necessary “to provide the link between the person identified at trial and person named in the indictment,” the statute pursuant to which defendant was convicted, N.C. Gen.Stat. § 14–27.2(a)(2) (2013), requires only that a defendant have engaged in vaginal intercourse with “another person.” Defendant has cited no authority suggesting that the actual name of the victim is an essential element of first degree rape, and he did not move to dismiss based on a fatal variance between the indictment and the evidence offered.
It appears that defendant has confused what this Court has referred to as “short form essentials”—referring to the elements that must be alleged in an indictment-with the essential elements of the offense that must be proven at trial. See In re M.S., 199 N .C.App. at 265, 681 S.E.2d at 444 (“As naming the victim is included in the [short form indictment] statute, it is one of those ‘short form essentials' that must be contained in the indictment.” (quoting State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) )). Although the name of the victim is a “short form essential,” it is not an essential element of the offense of first degree rape. See State v. Kelso,187 N.C.App. 718, 721–22, 654 S.E.2d 28, 31 (2007) (“The pertinent essential elements of first degree rape [pursuant to N.C. Gen.Stat. § 14–27.2(a)(2)(b) ] are: (1) vaginal intercourse; (2) with another person;(3) by force and against the will of the other person; (4) while inflicting serious personal injury upon the victim or another person.” (emphasis added)). See also State v. Little, 188 N.C.App. 152, 157, 654 S.E.2d 760, 763 (2008) ( “The elements of first-degree rape are defined by N.C. Gen.Stat. § 14–27.2(a). The relevant elements are (1) that a person engages in vaginal intercourse, (2)[w]ith another person by force and against the will of the other person, and (3)[e]mploys or displays a dangerous or deadly weapon,’ or‘[i]nflicts serious personal injury upon the victim ....“ (internal footnote and quotation marks omitted)). Consequently, we hold that any error in the admission of the evidence was harmless beyond a reasonable doubt.
NO ERROR.
Judges STEELMAN and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 18 July 2013 by Judge Carl R. Fox in Durham County Superior Court. Heard in the Court of Appeals 11 September 2014.