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reviewing for plain error and explaining that “[t]he holdings of both Ashe and Wilson are narrow [w]e distinguish the facts of the present case and decline to extend the holdings of Ashe and Wilson ”
Summary of this case from State v. MayOpinion
No. COA12–197.
2012-07-17
STATE of North Carolina v. Christopher GUY.
Attorney General Roy Cooper, by Assistant Attorney General Olga Vysotskaya, for the State. Glenn Gerding for defendant appellant.
Appeal by defendant from judgment entered 30 June 2011 by Judge Jesse B. Caldwell, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Olga Vysotskaya, for the State. Glenn Gerding for defendant appellant.
McCULLOUGH, Judge.
On 30 June 2011, Christopher Guy (“defendant”) was convicted of three counts of taking indecent liberties with a child, two counts of attempted first-degree sexual offense with a child, and one count of first-degree sexual offense with a child by a Mecklenburg County jury. The trial court sentenced defendant to two consecutive sentences of 189 to 236 months, followed by a consecutive sentence of 288 to 355 months in prison and, following his release, lifetime registration as a sex offender and enrollment in satellite-based monitoring (“SBM”). Defendant now appeals the 08 CRS 242797 judgment of attempted first-degree sexual offense and the trial court's order that he register as a sex offender and enroll in SBM for the remainder of his natural life. For the reasons set forth below, we find no error as to defendant's attempted first-degree sexual offense conviction. However, we find that the trial court erred in ordering defendant to enroll in lifetime SBM and therefore vacate that order and remand this case for resentencing following a risk assessment by the Department of Corrections.
I. Background
The State's evidence at trial tended to show the following: On 28 May 2008, Memorial Day weekend, nine-year-old A.G., the victim, was staying overnight at the house where her cousin, eight-year-old S.G., lived with defendant, his wife Sh'quita, and their four daughters. Around midnight, the children went to sleep in the downstairs area. A.G., S.G., and S.G.'s sister slept beside each other on the floor, and A.G.'s two brothers slept on the couch. A.G. fell asleep wearing underwear and pajamas.
Around 3:00 a.m., A.G. awoke, noticed her pajama pants and underwear were pulled down below her buttocks, felt “something on her bottom,” and felt defendant “feeling on” her “butt.” A.G. felt something touching her “in [her] butt cheek,” which was defendant trying to penetrate her “hole” with his penis. A.G. resisted, at which point defendant rolled her on top of himself. A.G. began crying, pulled up her pants, and stood up. Defendant threw A.G. down to the floor, then grabbed her and set her on the kitchen counter, where defendant tried to make A.G. kiss him. A.G. further resisted, jumped down from the counter, and ran back into the living room where she sat on the couch and cried.
Meanwhile, S.G. awoke when she heard A.G. scream and say “don't touch me.” S.G.'s mother, Sh'quita, also awoke. A.G. told Sh'quita that defendant was “trying to mess with” her, but Sh'quita contended that defendant was just trying to carry her upstairs and insisted that A.G. go back to sleep. That night, S.G. and A.G. slept together, and in the morning, after A.G. stated to S.G. that defendant had touched her breasts, her genital area, and her buttocks, S.G. revealed that her father, defendant, had touched her similarly and on numerous occasions since a young age.
The morning of 29 May 2008, Sh'quita drove A.G. and her brothers home, where A.G. informed her family of the events that transpired the night before. Thereafter, A.G.'s family called the police. Later, A.G. described the object that touched her as defendant's penis because it felt larger than what fingers would feel like and it also felt slippery, “spitty,” and wet. A.G. also used dolls to demonstrate how the offense occurred. Subsequently, various incidents regarding sexual acts defendant performed on his daughter, S.G., came to light, which incidents S.G. testified to at trial.
On 1 December 2008, a Mecklenburg County grand jury returned true bills of indictment alleging taking indecent liberties with a child, A.G.; attempted first-degree sexual offense with A.G.; two counts of taking indecent liberties with a child, S.G.; attempted first-degree sexual offense with S.G.; and first-degree sexual offense with S.G. On 27 June 2011, over objection by appointed counsel, defendant properly waived his right to counsel and this case was tried before a jury at the Criminal Session of Superior Court of Mecklenburg County. During trial, the State presented the testimony of A.G., S.G., A.G.'s family members, a DNA analyst for the Charlotte–Mecklenburg Police Department, and a Detective for the Charlotte–Mecklenburg Police Department, as well as two videotaped interviews with A.G. and S.G. recorded at a child advocacy center. Defendant represented himself and testified on his own behalf. Defendant denied the charges and elicited the testimony of his cousin in support of his good character and reputation.
During jury instructions, the trial court judge misordered the pages of his charge and, while reading the instructions on count two, attempted first-degree sexual offense with A.G., 08 CRS 242797, he inadvertently skipped forward and read the instructions for attempted first-degree sexual offense with S.G., 08 CRS 242798. The State corrected the trial judge, and the judge recharged the jury that, particular to attempted first-degree sexual offense with A.G., a “sexual act” “means any penetration, however slight, by an object into the genital opening of a person's body.” The State further corrected the trial judge, and the judge instructed the jury that a “sexual act” means “any penetration, however slight, of an object into the genital or anal opening of a person's body.” (Emphasis added.) The judge then excused the jury for deliberations.
The jury found defendant guilty of all charges and the court sentenced defendant to two consecutive sentences of 189 to 236 months, followed by a consecutive sentence of 288 to 355 months in prison. Defendant was further ordered to register as a sex offender and enroll in SBM for the remainder of his natural life upon his release from prison. The court based this sentence on defendant's conviction of an “aggravated offense” involving the sexual abuse of a minor, pursuant to N.C. Gen.Stat. §§ 14–208.6(1a) and 14–208.40A (2011).
On 14 July 2011, defendant filed written notice of appeal pursuant to N.C. Gen.Stat. § 15A–1444 (a) (2011) and Rule 4 of the North Carolina Rules of Appellate Procedure. Defendant now appeals from the conviction of attempted first-degree sexual offense with A.G., 08 CRS 242797, and the order that he register as a sex offender and enroll in SBM for the remainder of his natural life.
II. Analysis
1. Attempted First–Degree Sexual Offense
Defendant first argues that the trial court committed reversible error by instructing the jury on alternate theories of what constitutes a “sexual act” under N.C. Gen.Stat. §§ 14–27.1 and 14–27.4 (2011). Defendant argues that one theory is not supported by the evidence. Specifically, defendant contends that the trial court erred by instructing the jury in disjunctive form that it could find defendant guilty of attempted first-degree sexual offense based on “penetration” of the “genital or anal opening of a person's body,” which defendant argues compromises the unanimity of the jury's verdict. Defendant further argues that the trial court's failure to define “object” and failure to state that “sexual act” for purposes of attempted first-degree sexual offense does not include vaginal intercourse led to jury confusion, in that the jury could have found defendant guilty of attempted rape in place of the indicted offense. Defendant cites State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), in support of his contention that, because the trial court denied defendant his constitutional right to a unanimous verdict, we must review the issue de novo, regardless of whether defendant objected to the instructions at trial. See id. at 39, 331 S.E.2d at 659.
“As a general rule, defendant's failure to object to alleged errors by the trial court operates to preclude raising the error on appeal.” Id. However, where “the error violates defendant's right to a trial by a jury of twelve, defendant's failure to object is not fatal to his right to raise the question on appeal.” Ashe, 314 N.C. at 39, 331 S.E.2d at 659. “Where the error violates a defendant's right to a unanimous jury verdict under Article I, Section 24, we review the record for harmless error” and “[t]he State bears the burden of showing that the error was harmless beyond a reasonable doubt.” State v. Wilson, 363 N.C. 478, 487, 681 S.E.2d 325, 331 (2009).
In Ashe, the trial court violated defendant's constitutional right to trial by jury by instructing the foreman separately and out of the presence of the other jurors. See Ashe, 314 N.C. at 32–34, 331 S.E.2d at 655–56. Similarly, in Wilson, the court conducted an unrecorded bench conference with the foreman out of the presence of the jury, then instructed the foreman separately from the jury, which our Supreme Court held compromised the unanimity of the verdict. See Wilson, 363 N.C. at 331, 681 S.E.2d at 486. In both Ashe and Wilson, the Court reviewed the record notwithstanding the defendants' failure to object to the instructions at trial. See Ashe, 314 N.C. at 40, 331 S.E.2d at 659;Wilson, 363 N.C. at 331, 681 S.E.2d at 486. The holdings of both Ashe and Wilson are narrow. We distinguish the facts of the present case and decline to extend the holdings of Ashe and Wilson.
Defendant contends that the language of the instruction in the present case denied him his constitutional right to a unanimous verdict. “No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” N.C. Const. art. I, § 24; see alsoN.C. Gen.Stat. § 15A–1237 (b) (2011). We review the question of whether a verdict is unanimous de novo. See State v. Surrett, ––– N.C.App. ––––, ––––, 719 S.E.2d 120, 123 (2011). Where the trial court instructs a jury that it may find a defendant guilty of a charge on alternative grounds, and “[w]here each alternative ground constitutes a separate and distinct offense, the risk of a nonunanimous verdict arises.” State v. Petty, 132 N.C.App. 453, 460, 512 S.E.2d 428, 433 (1999) (citing State v. Diaz, 317 N.C. 545, 553, 346 S.E.2d 488, 494 (1986)). However, when the instructions enumerate alternative acts that establish an element of the offense and do not independently constitute separate offenses, the disjunctive charge does not lead to an ambiguous verdict. See State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991). Furthermore, this Court has expressly determined that incorporating the statutory definition of “sexual act” in the instruction merely serves to criminalize a single wrong for purposes of first-degree sexual offense and does not presuppose a conviction of a separate offense. N.C. Gen.Stat. § 14–27.1 (2011). See Petty, 132 N.C.App. at 462, 512 S.E.2d at 434;State v. Treadway, ––– N.C.App. ––––, ––––, 702 S.E.2d 335, 345 (2010), disc. review denied,365 N.C. 195, 710 S.E.2d 35 (2011).
In the present case, the trial court phrased the charge in the disjunctive, instructing the jury that it could have found defendant guilty of attempted first-degree sexual offense if it determined that defendant attempted to penetrate A.G.'s genital or anal opening. Because the jury could have found that defendant attempted to engage in one of the charged sexual acts, the jury was properly allowed to convict defendant of the charged offense. Thus, we hold that defendant's argument alleging a nonunanimous jury verdict and attacking the propriety of the disjunctive charge is without merit. Accordingly, we need not address the question of whether the State has shown harmless error. Rather, because defendant failed to object to the instructions at the time of trial, pursuant to Rule 10(a)(2) of the North Carolina Rules of Appellate Procedure, defendant did not preserve error upon appeal. Although defendant has not “specifically and distinctly” contended that the alleged errors in the trial court's jury instructions amounted to plain error, the State has asserted that this Court should review defendant's jury instruction arguments for plain error. N.C. R.App. P. 10(a)(4)(2012). Therefore, pursuant to Rule 2 of our Rules of Appellate Procedure, we review the trial court's jury instructions for plain error. See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198–99 (2000).
Defendant next argues that the trial court's failure to define “object” and the court's failure to define “sexual act” as not including vaginal intercourse not only destroyed the unanimity of the verdict, but allowed the jury to convict defendant of attempted rape, a charge not supported by the evidence. Defendant inaccurately contends that this error amounts to a fatal variance between the offense charged in the indictment and the jury instructions given at trial, thus necessitating a dismissal of the attempted first-degree sexual offense judgment.
“It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). Here, defendant argues that, based on the language used in the instruction, the jury could have found him guilty of a crime different than the attempted first-degree sexual offense set forth in the indictment. Defendant actually propounds the converse of the fatal variance rule.
In State v. Lark, 198 N.C.App. 82, 678 S.E.2d 693 (2009), disc. review denied,363 N.C. 808, 692 S.E.2d 111 (2010), this Court clarified that a fatal variance occurs only where an essential element of the crime set forth in the indictment is not included in the jury instructions. See id. at 92,678 S.E.2d at 701. In the present case, defendant was indicted for attempted first-degree sexual offense, which may be proven by attempted penetration of an object into the genital or anal opening. The corrected charge included those exact words and did not vary from the statutorily prescribed language. Thus, a fatal variance did not occur rising to the level of prejudicial error. Further, our Supreme Court has held that a “sexual act” includes an act of penetration by any object, animate or inanimate, including any body part, with the sole exception of vaginal intercourse. See State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981). Therefore, “object” may include digits or a penis. Moreover, this case is most analogous to State v. Speller, 102 N.C.App. 697, 404 S.E.2d 15 (1991), where, in his charge, the trial judge did not include the statutory language that a “sexual act” does not include vaginal intercourse. Id. at 704–05, 404 S.E.2d at 19–20. In Speller, this Court explicitly rejected the defendant's argument that the charge enumerated the elements of rape and therefore confused the jury. See id.
Defendant's final argument is that no evidence supported the instruction that a “sexual act” may consist of “penetration, however slight, by any object into the genital or anal opening of a person's body.” When a defendant challenges the sufficiency of the evidence to support a conviction, this Court determines whether there is “substantial evidence” of the essential elements of the offense charged and whether the defendant is the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65–66, 296 S.E.2d 649, 651 (1982). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ Id. at 66, 296 S.E.2d at 652 (quoting State v.. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)). In making the determination whether evidence is sufficient to support a conviction, the court views the evidence in the light most favorable to the State and gives the State “the benefit of all reasonable inferences” to be drawn therefrom. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Here, the State has propounded overwhelming evidence that defendant attempted to penetrate A.G.'s genital or anal opening with either his fingers or his penis sufficient to warrant the jury's conviction of attempted first-degree sexual offense. Consequently, defendant's arguments regarding the instruction on attempted first-degree sexual offense are without merit and the trial court committed no error.
Having determined that the trial court's disjunctive phrasing and omissions did not compromise the unanimity of the jury's verdict, we review the entirety of the jury charge for plain error. Our Supreme Court recently engaged in a comprehensive review of the plain error standard. See State v. Towe, ––– N.C. ––––, ––––, S.E.2d ––––, –––– (No. 121PA11, slip op. at 10–11 (June 14, 2012) (citing State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 333–35 (2012)). In order to invoke plain error review, the defendant must “specifically and distinctly” contend that an instructional or evidentiary error was so “fundamental,” “basic,” or “prejudicial” that the error resulted in a “miscarriage of justice or in the denial to [defendant] of a fair trial.” N.C. R.App. P. 10(a)(4); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 387 (1983) (internal quotation marks and citations omitted); see also State v. Dennison, 359 N.C. 312, 312–13, 608 S.E.2d 756, 757 (2005); State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39–40 (2002). Here, as we previously stated, although defendant has failed to invoke plain error review, we utilize Rule 2 of our Rules of Appellate Procedure to review the charge for plain error. Under plain error review, the defendant must show that but for the error, the “jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Further, our Supreme Court has reaffirmed the principle that “plain error should be used sparingly, only in exceptional circumstances, to reverse criminal convictions on the basis of unpreserved error.” Lawrence, ––– N.C. at ––––, 723 S.E.2d at 333 (citing Odom, 307 N.C. at 660–61, 300 S.E.2d at 378);see also Towe, –––N.C. at ––––, –––– S.E.2d at ––––, (No. 121PA11, slip op. at 11 (quoting Lawrence, ––– N.C. at ––––, 723 S.E.2d at 334)).
In the instant case, defendant has failed to meet his burden of showing that, had the trial court not instructed the jury in disjunctive, and had the trial court incorporated the entirety of the statutory language, including the definition of “object,” the jury probably would have returned a different verdict. Defendant has also failed to show that the instruction was so prejudicial that it amounted to plain error sufficient to set aside his conviction. Given the overwhelming evidence of defendant's guilt propounded at trial by the State, we perceive no likelihood that the result of the trial based on the instructions would have been any different had the trial court read a different charge. Accordingly, we find no error.
2. Sex Offender Registration and SBM Enrollment for Life
Finally, defendant argues that the trial court erroneously required him to register as a sex offender and enroll in SBM for the remainder of his natural life. We agree.
This Court reviews alleged sentencing errors for “ ‘whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.’ “ State v. Deese, 127 N.C.App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen.Stat. § 15A–1444(al) (Cum.Supp.1996)); see also State v. McCravey, 203 N.C.App. 627, 637–38, 692 S.E.2d 409, 418,disc. review denied,364 N.C. 438, 702 S.E.2d 506 (2010).
Defendant maintains, and the State concedes, that the trial court erred by ordering defendant to enroll in SBM for the remainder of his natural life based on a conviction for an “aggravated offense.” Here, the trial court found that defendant's conviction for attempted first-degree sexual offense with A.G. was an “aggravated offense” as defined by N.C. Gen.Stat. § 14–208.6(1a)(2011), and ordered that upon defendant's release from prison, he enroll in lifetime SBM, pursuant to N.C. Gen.Stat. § 14–208.6(1a) which defines an “aggravated offense” as
any 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.
Id. “[W]hen making a determination pursuant to N.C.G.S. § 14–208.40A [regarding the SBM requirement], the trial court is only to 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. Davison, 201 N.C.App. 354, 364, 689 S.E.2d 510, 517 (2009), disc. review denied,364 N .C. 599, 703 S.E.2d 738 (2010). Thus, our review is limited to comparing the statutory definition of “aggravated offense” to the elements of defendant's charge: attempted first-degree sexual offense under N.C. Gen.Stat. § 14–27.4.
Attempted first-degree sexual offense is not an “aggravated offense” for purposes of N.C. Gen.Stat. § 14–208.40A because, as an element of the charge, although the defendant intends to perpetrate a “sexual act,” he ultimately falls short of “engaging” in that act and completing the offense. See Treadway, ––– N.C.App. at ––––, 702 S.E.2d at 347–48;Davison, 201 N.C.App. at 362, 689 S.E.2d at 516. Therefore, defendant did not commit an “aggravated offense” and is not subject to lifetime registration and lifetime SBM under N.C. Gen.Stat. § 14–208.40A (2011).
The trial court did not err, however, in finding that Defendant's first-degree sexual offense involved the “physical, mental, or sexual abuse of a minor” according to N.C. Gen.Stat. § 14–208.40A(d). Therefore, the trial court should order the Department of Corrections to perform a risk assessment in order to determine whether defendant should register as a sex offender and enroll in SBM for a term of years pursuant to N.C. Gen.Stat. § 14–208.40A(d) and (e). See State v. Carter, ––– N.C.App. ––––, ––––, 718 S.E.2d 687, 699 (2011); State v. King, 204 N.C.App. 198, 203, 693 S.E.2d 168, 172 (2010). Accordingly, we vacate the trial court's order that defendant register and enroll in SBM for the remainder of his natural life and remand this case for a proper risk assessment and further proceedings.
III. Conclusion
For the reasons set forth above, we conclude that, regarding defendant's conviction of attempted fist-degree sexual offense with A.G., File No. 08 CRS 242797, the trial court committed no error. Further, we vacate the trial court's order that defendant register for life as a sex offender and enroll in lifetime SBM and remand this case for resentencing and further proceedings not inconsistent with this opinion.
No error in part, vacated in part, and remanded in part. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).